PRINCIPLES Of ISLAMIC JURISPRUDENCE by Mohammad Hashim Kamali

Mohammad Hashim Kamali

PRINCIPLES
of ISLAMIC
JURISPRUDENCE

‘Third Revued and Enlarged Edinoo

ABOUT THE AUTHOR

Dr. Mohammad Hashim Kamali is currently Profesor of Law at the
International Islamic University of Malaysia, where he has been teach
ing Islamic law and jurisprudence since 198s. Born in Afghanistan in
1944, he studied law at Kabul University where he was later
appointed Assista
Attorney with the Ministry of Justice in Afghanistan. He completed
his LL.M. and his doctoral studies at London University, where he
specialised in Islamic law and Middle Eastem Studies. Dr. Kamali
then held the post of Assistant Professor at the Institute of Islamic
Studies at McGill University in Montreal, and later worked as
Research Associate with the Social Science and Humanities Research
Council of Canada. He is the author of Law in Afghanistan, A Study
ofthe Constitutions, Matrimonial Law and the Judiciary (Leiden: E.). Brill,
1983); Freedom of Expression in Islam (Kuala Lumpur: Berita Publishing,
1994; new edition, The Islamic Texts Society, 1997); Punishment in
Islamic Law: An Enquiry into the Hudad Bill of Kelantan (Kuala Lumpur:
Institute for Policy Research, 1998); Istishan (Juristic Preference) and its
Application to Contemporary Issues (Jeddah: Islamic Research and
Training Institute, Eminent Scholars Lecture Series No. 20, 1997);
Blamic Commercial Law: An Analysis of Putures and Options, The Dignity
of Man: An Islamic Perspective and Freedom, Esquality and Justice in Islam (all
published by The Islamic Texts Society, Cambridge) and numerous
articles in reputable international journals. He is twice recipient of
the Ismall al-Farugi Award for Academic Excellence in 1995 and

¢ Profesor. Following this he worked as Public

1997,

Foreword

Usal al-figh has always occupied a prominent place in the teaching
curricula of Islamic institutions of legal learning. As a discipline of
Shart ah, ugil al-figh embodies the study of the sources of Islamic law
and the methodology for its development. But even beyond its specific
frame of reference one might say that usd al-figh provides a set of
criteria for the correct evaluation and understanding of almost any
branch of Islamic leaning, The teaching programmes of Islamic law that
are conducted in English are in many ways hampered by a shortage
of adequate reading materials in this language, and this 1s particularly
the case with regard to up! al-figh. The need for a comprehensive
text on usill alsfigh has long been felt by students and readers in this
University. Professor Kamali’s contribution is therefore well received
and appreciated by all those who are concerned with studying or
teaching usal al-figh. Since the initial publication of this book in 1989
in Kuala Lumpur, it has already become a well-acknowledged and
widely read work of reference on the subject. The style of Professor
Kamali’s writing is refreshingly unconventional and yet his work
remains well-founded and in close contact with the Arabic sources
of his discipline, The author's personal experience of training in both
Islamic and modem legal disciplines is reflected in his work, as he
makes frequent comparisons with the concepts and principles of
‘Wester jurisprudence.

1 take this opportunity to express my appreciation of Professor
Kamali’s valuable contribution. 1 also welcome the decision of the
Islamic Texts Society of Cambridge, U.K., to bring out a new and
more refined edition of this book. Students and readers of Islamic
jurisprudence in English-speaking institutions of higher learning who
do not read Arabic will find this book a significant contribution in
the depth and detail of information it provides, reflecting both the
content and the spirit of the Arabic sources of its origin. In his

understane

glish tends to be ge henefore insufficie
king a fall course of study in the sul
Moharm Hashi K. z
Prof. Tan Sri Datuk Ahmad Tbr =
Kulliyyah of Laws “
nternational Islamic U Contents

FOREWORD
PREFACE TO THE THIRD BDITION
PREFACE

WAPTER ONE: Introduction to Uyil al-Figh

MAprER TWO: The Fint Source of Shari'ah: The Qur’in
CHAPTER THREE: The Sunnah

the Law from its Sources

CHAPTER POUR: Rules of Interp
Deduc

HAPTER Five: Rules of Interpretation II
al-Dulalt (Textual Implications)

CHAPTER 51x: Commands and Prohibioons
CHAPTER spvan: Naskh (Abrogation)
CHAPTER EIGHT: [md (Consensus of Opinion)
CHAPTER NINE: Qiyds (Analogical Reasoning)

CHAPTER TEN: Revealed Laws Preceding
the Shariah of Islam

CHAPTER ritVvuN: The Fatud of a Companion

CHAPTER TWELVE: [stihsdn (Equity in Islamic Law)

CHAPTER

CHAPTER

CHAPTER

CHAPTER

CHAPTER

CHAPTER

CHAPTER

THIRTEEN

FOURTEEN
FIFTEEN: b

SIXTEEN

SEVENTERN: Hukm Sh

BIGATEEN

NINETEEN

TWENTY

Maslahah Mur

Ur (Custor

tishab (Presumption

Dhara't* (Bic

Law or Value o!
Conflict of Ev
Jjtihad (Personal Re

A New Scheme for

of Continuity

Means)

f Shariah

CONCLUSION
INDEX

Preface to the Third Edition

Following the initial publication of this work by Pelanduk Publications
of Kuala Lumpur in 1989, 4 revised edition was published in 1991 by
The Islamic Texts Society, Cambridge, U.K., for distribution in

Europe and North America. The book has, as a result, been widely
1

distributed, an
that specialise in Islamic disciplines have selected it as a required text
in their courses and teaching programmes, Several distinguished
scholars have, in the meantime, reviewed both the Kuala Lumpur and

nany reputable universities and academic institutions

the Cambridge editions, and have made encouraging and useful
observations. | take this opportunity to thank them for
and their valuable suggestions, many of which I have taken into
consideration in the preparation of the present edition. | shall presently
refer to some of their comments but, before | do so, | shall briefly
explain the nature of the revision | undertook for this edition,

that the reader will notice in this
for students and teachers

cir interest

One of the more visible chang
edition, and one which will prove useful
alike, is the appearance of Qur’3nie dyar both in Arabic and in English
translation. In the first two editions, I included the Arabic versions
of hadith, but not of Qur’Snic passages for the obvious reason that the
standard text of the Qur’in is more easily accessible without variation
and this is not the case with hadith, Finding a particular hadith in the
various collections can be difficult and ume-consuming, and the
wording of hadid: may also differ in different collections. But then
my experience of using this text in my own teaching showed that it
would be very convenient to have the Arabic text of both the Qur'in
and hadith readily at hand.

The revision that I have undertaken for the present edition consists
mainly of enhancing the original text by the addition of relevant
information in different places throughout the book. The original
text remains virtually unchanged but the reader will find frequent

PRINCIPLES OF ISLAMIC JURISPRUDENCE

Preface to the Third Edition xiii

additions in almost every chapte
end, entitled “A New Sch

work has, as a result, been general

-
for Usil al-Fight
aded

responsive to the needs of advanced ents of usill al-figh, But even
0, [hasten to add that usa! al figh is a vast discipline and any attempt
to treat the entire field in a single book bound to have its dra

backs. I have confined my additions to the minimum of what could
reasonably be accommodated within the framework of the original
text, But the reader can still expect to find interesting additions to
the chapters on the Qur’in, the Sunnah, abrogation (naskeh), commands

and prohibitions, the rules of interpretation, giyas, istihsdn and th

As me
the book since its initial publication in Kuala Lumpur and in Cambridge

Most of the reviewers’ comments were positive and appreciative of

hed scholars have reviewed

ntioned above, several disting.

the style of my presentation in writing a book that was not burdened

with excessive detail and yet is substantial enough to appeal to the

discerning reader of Islamic law. I was happy to have been congratu

lated for having been remarkably successful in my presentation of the
subject-matter of usil al-figh in the manner and style that one would
expect to find in its recognised Arabic sources, The reviewers

comments also noted that the book was rich in providing frequent

illustrations from the Qur'in and Sunnah in almost every part, +

nicul

thing which students
ul

ind non-specialist readi

However, one of my distinguished reviewers questioned my dec
to place a c er on ijthdd at the very end of the book. I should
have explained for the benefit of those who do not read Arabic that
this is not an unusual feature of Arabic textbooks on usil al-figh, The
reason for this is perhaps rather symbolic of the message that ijtihdd
is the end-result of usill al-figh, and the ability to conduct it is the
sum-total of the knowledge and acumen that this discip!
convey, [ have in fact said this in my

introduction when stating that
regulating ijtihdd is one of the cardinal objectives of usiil al-figh. I have
therefore not changed the previous arrangement of titles, but have
added a conclusion in which [ have taken up the issues pertaining to

ijuhad and touched on questions such as the theoretical natu

of the

methodology of usil al-figh, and its relevance or otherwise to the
legislative processes of modem government. This I have done partly
in response to a reviewer's comment that the book ended rather
abruptly (with the chapter on ijtihdd) and suggested that a general

conclusion to the text would be desi

e. Des
a textbook is not the best place in which to add

I still chought it worthwhile to convey a certain awareness of

ite the awareness

ress contentious iss

h
issues in the conclusion. I have consequently commented on the
that Muslim scholars and jurists must take up
if the methodology of usiil al

integrated into the process

nature of the challeng

|-figh and ijtihad are to be revitalised and

law and government in modern times,

Mohammad Hashim Kamali
International Islamic University, Malaysia

Preface

1. Apart from the fact that existing works on Islamic jurisprudence
in the English language do not offer an exclusive treatment of
usil al-figh, there is also a need to pay greater attention to the source
muterials, namely the Qur'in and Sunnah, in the study of this science
In English works, the doctrines of usil al-figh are often discussed in
relative isolation from the authorities on which they are founded.
Furthermore, these works tend to exhibit a certain difference of style
and perspective when they are compared to Arabic works on the
subject. The usiilal-figh as a whole and all of the various other branches
of the Sharf‘ah bear testimony to the recognition of divine revelation
why) as the most authoritative influence and source, over and above
that of rationality and man-made legislation. This aspect of Islamic
aw is generally acknowledged, and yet the relevance of wahy to the
detailed formulations of Islamic law is not highlighted in English
works in the same way as one would expect to find in works of Arabic
origin. I have, therefore, made an attempt to convey not only the
contents of usa! alsfigh as I found them in the Arabic sources, but also
the tone and spirit of the source materials | consulted. I have given
frequent illustrations from the Qur'an, the Sunnah and well-recognised
works of authority to substantiate the theoretical exposition of
ideas and doctrines, The works of the madhahib, in other words, are
treated with consideration for the authority on which they are
founded.

Il. The idea of writing a book on usil al-figh occurred to me in early
1980 when I was teaching this subject to postgraduate students at the
Institute of Islamic Studies at MeGill University in Montreal. Bur it
was only after 1985, when I started a teaching post at the International
Islamic University, Selangor, Malaysia, that I was able to write the
work I had intended. 1 was prompted to this decision primarily by

XVi_ PRINCIPLES OF ISLAMIC JURISPRUDENCE

Preface xvii

the shortage of English textbooks on Islamic jurisprudence for students
who seck to acquire an intermediate to advanced level of prof
in this subject. Works that are currently available in English on Islamic
law and jurisprudence are generic in that they tend to treat a whole
range of topics both on ssi al-figh and the various branches of figh
(ce. furi® al-figh), and often within the scope of a single volume. The
information that such works contain on usiil al-figh is insufficient for
the purposes of pursuing a full course of study on the subject. The
only exception to note here, perhaps, is the area of personal law, that
is, the law of marriage, divorce, inheritance, etc., which has been
treated extensively, and on which there are a number of English texts
currently available, Arabic works on ual al-figh are, on the whole,
exclusive in che treatment of the discipline. There is a selection of
textbooks in Arabic, both classical and modem, at present available
on this subject, ranging from the fairly concise to the more elaborate
and advanced. Works such as ‘Abd al-Wabhib Khallaf’s ‘In Usal
al-Figh, Aba Zalrah’s Usil al-Figh, Mubammad al-Khudart’s Ussl
al-Figh, and Badsin's Usil al-Figh al-Islimi are just some of the well=
known modem works in the field. Classical works on usill al-figh, of
which there are many, are, broadly speaking, faitly elaborate, some-
times running into several volumes. | have relied, in addition to the
foregoing, on al-Ghazili’s al-Mustayf@ min ‘Tim al-Usal, al-Amidi’s
aleTskam fi Usl al-Abkien, al-Shiqibi's al-Muviifagat jt Uyal al-Abksim
and al-Shawkint's Irshad al-Fubil @ Tabqig al-klagg min ‘Im al-Usil
These are all devoted, almost exclusively, to the juridical subject-matter
of usil al-figh, and rarely, if ever, address the historical development
of this discipline beyond such introductory and incidental references
as the context may require, Arabic writers tend to treat the historical
development of jurisprudence separately from the ssill alzfigh itself.
‘There are several Arabic works of modern origin currently available
‘on the history of jurisprudence and its various phases of development,
namely: the Prophetic period; the era of the Companions; the early
schools of law in the Hijiz and Iraq; the emergence of the madhiihib;
the era of imitation (taglrd); and the call for a return to ijtihaid. This
discipline is generally known as tarikh al-tashr which, as the title
suggests, is primarily concemed with the history of juristic thought
and institutions,' Arabic texts on usil al-figh itself are devoted to the
treatment of the sources and methodology of the law, and tend to
leave out its historical development.

The reverse of this is true with regard to general works that are
currently available on the subject of Islamic jurisprudence in the English

iency

language, Works of Western authorship on this subject are, broadly
speaking, primarily concemed with the history of junsprudence, while
the juridical subject-matter of usill alfigh does not receive the same
level of attention, Bearing in mind the nature of this existing English
literature, and the fact that there is adequate information available on
the history of Islamic jurisprudence in English, the present work does
not attempt to address the historical development, and instead focuses
on usillal-figh itself

Another point to be noted regarding works on Islamic jurisprudence
in English by both Muslim and non-Muslim authors is that they are
somewhat selective in their treatment of the relevant topics, and certain
subjects tend to be ignored or treated only briefly. Consequently,
information on some topics, such as the rules of interpretation,
classificanon of words, commands and prohibitions, and textual impl-
cations (al-daldldd) is particularly brief and often non-existent in these
works. Even some of the more familiar topics such as giyas, istigldh,
{stishab and sadd al-dhara’ ate treated superficially in most English
books that are currently in use. The reasons for such omissions are
not always clear. The authors might have considered some of these
topies to be somewhat technical and involved for English readers,
whose interest in usil al-figh has for a long time remained confined
to general and introductory information on the subject. Some of these
topics, such as the rules of interpretation, al-dalalar, and the techni-
calities of giyis, which draw somewhat heavily on the use of Arabic
terminology, might have been viewed in this light, The English-
speaking student of Islamic studies has been perceived as someone
who will have little use for technical detail on up! al-figh. This might
at best offer a plausible explanation, but it is one that carries little
weight, especially in view of the greater interest that Islamic legal
studies has recently attracted in the West, and in some of the English-
speaking institutions of higher learning in Islamic countries themselves.
Moreover, the fact that some Islamic countries have in recent decades
shown a fresh interest in developing greater harmony between the
Shart'ah and statutory laws has also meant that practising lawyers and
judges in these countries are increasingly encouraged to enhance their
expertise in the Sharf ah disciplines.

Modem Arabic writings on ul al-figh tend to differ from the older
works on the subject in that the former take cognisance of recent
developments both in the Muslim communities and beyond. Thus the
reader of many a modem work often comes across comments and
comparisons which seek to explain the application and relevance of

xviii PRINCIPLES OF ISLAMIC JURISPRUDENCE

the Shari'ah doctrines to modem legislation, and to the principles of
Westem jurisprudence. Much to their credit, some ‘wlama’ and
writers of modern works have attempted to relate the classical formu-
lations and doctrines of usiil al-figh to the contemporary socio-legal
conditions of their communities. There exists a level of concern
about the gap that has gradually developed between the Shari'ah and
modern law, and about the fact that the problem still remains to be
tackled. There have also been attempts, be they in the form of
individual reform proposals, a call for fresh ijtihdd about particular
issues, or formal resolutions adopted at national and international
gatherings of scholars, to tap the resources of usil al-figh in order to
bridge the gap between the Shar ah and modem social conditions. A
full account of such developments falls well beyond the scope and
objective of the present work.’ But in discusing certain doctrines
such as ijtihad, ijmi, istibsdn and maylabal, | have attempted to present
the modern current of opinion, and occasionally my own views, as
to how these principles could be utilised in contemporary legal and
Judicial processes, I have taken this liberty despite the awareness that
it might fall beyond the brief of a work that seeks to be an exposition
of the existing doctrines and institutions as they are. I wish to add
here that 1 alone bear full responsibility for the propnety or other-
wise of my views

Furthermore, recent Arabic texts on usiil al-figh tend to treat their
subject-matter in a more consolidated and simplified form that makes
it manageable for the modem student of law. These works are on
the whole more concise than earlier authorities on the subject. It is
primarily in matters of format and style that they differ from the older
works, As for substantive matters, modem works are normally
expected to preserve the continuity of the earlicr authorities, and the
‘wo are basically indistinguishable in this regard. Having said this, one
might add further that modern works tend to differ from their prede-
cessors in one other respect, namely, that the former tend to offer a
more even-handed treatment of the views and doctrines of such
schools of thought as the Mu'tazilah, the Shi‘ah and the Zabiriyyah,
ete,, and tend to treat ideas on merit rather than their formal
acceptance and recognition by the established madhahib, In addition
to the textbook materials on sil al-figh, a number of legal encyclo~
pedias have emerged in recent decades in Egypt and elsewhere,
usually bearing the title “al-Mawsi'ah al-Fighiyyah’, with the express
purpose of offering a balanced treatment of the views and contribu-
tions of all the prominent schools of law. As a result, the relatively

Preface xix

stronger orientation toward particular schools that is noticeable in the
earlier works on usiil al-figh, especially those that were authored after
the crystallisation of the madhihib, is not a prominent feature of the
moder works. A more open attitude has in fact emerged which secks
to move away from the sectarian bias that can be found in some
earlier works, and it is no longer unusual for a Sunni scholar to write
‘on Shit thought, scholars and institutions, with a view to highlight-
ing their contributions to Islamic law and jurisprudence. The present
wniter welcomes this development, but if his own work fails to offer
adequate coverage of the doctrines of the various schools, it is due
solely to considerations of brevity and space which may be expected
of a book of this size.

IML, Ie is perhaps erue to say that Islamic jurisprudence exhibits greater
stability and continuity of values, thought and institutions when
compared to Western jurisprudence, This could perhaps be partially
explained by reference to the respective sources of law in the «wo
legal systems. Whereas rationality, custom, judicul precedent, morality
and religion constitute the basic sources of Western law, the last two
acquire greater prominence in Islamic law. The values that must be
upheld and defended by law and society in Islam are not always
validated on rationalist grounds alone, Noowithstanding the fact that
human reason has always played an important role in the develop-
ment of Shari'ah through the medium of ijtihdd, the Shar ah itself is
primarily founded on divine revelation

A certain measure of fluidity and overlap with other disciplines
such as philosophy and sociology is perhaps true of both Islamic and
Western jurisprudence. But it is the latter which exhibits the greater
measure of uncertainty regarding its scope and content, Thus accord-
ing to one observer, books that bear the title ‘jurisprudence’ vary
widely in subject-matter and treatment because ‘the nature of the
subject is such that no distinction of its scope and content can be
clearly determined’, and in Julius Stone's somewhat dramatic phrase,
jurisprudence is described as ‘a chaos of approaches to a chaos of topics,
chaotically delimited’?

Usa al-figh, on the other hand, has a faitly well-defined structure,
and the ‘ulama’ had little difficulty in weating it as a separate disci-
pline of Islamic leaning. Textbooks on usil al-figh almost invariably
deal with a range of familiar topics, and their contents are fairly
predictable. This is perhaps reflective of the relative stability that the
Shartah in general and usil al-figh in particular have exhibited

XX PRINCIPLES OF ISLAMIC JURISPRUDENCE

through their development, almost independently of government and
its legislative organs. This factor has also meant, however, that usil
al-figh has, for the most part, been developed by individual jurists who
exerted themselves in their private capacity away from government
machinery and involvement in the development of juristic thought

Consequently, usiil al-figh has to some extent remained a theoretical
discipline and has not been internalised by the legislative machinery
of government. The history of Islamic jurisprudence is marred by 3
polarisation of interests and values between the government and the
lama’, The disaffection of the ‘ulama’ with the government, which
dates back to the beginning of the Umayyad rule, did not encourage
the latter's participation and involvement in the development of juris

tic thought and institutions, and this has to some extent discouraged
flexibility and pragmatism in Islamic jurisprudence. Note, for example,

the doctrinal requirements of ijmd, especially the universal consen

sus of the entire body of the mujeahidan of the Muslim community
that is required for its conclusion, a condition which does not
concede to considerations of feasibility and convenience. There is
also no recognition whatsoever of any role for the government in the
doctrine of ijma as a whole. The government for its part also did not
encourage the involvement and participation of the ‘wlamd” in its
hierarchy, and isolated itself from the currents of juristic thought and
the scholastic expositions of the ‘ulami’, The schools of jurisprudence
continued to grow, and succeeded in generating a body of doctrine,
which, however valuable, was by itself not enough to harness the
widening gap between the theory and practice of law in government

One might, for example, know about giyds and maslahah, etc., and
the conditions which must be fulfilled for their valid operation, But
the benefit of having such knowledge would be severely limited if
neither the jurist nor the judge had a recognised role or power to
apply it. One might also add here the point that no quick solutions
are expected to the problem about the application of the Shariah in
modem jurisdictions. The issue is a longstanding one and is likely to
continue over a period of time. It would appear that 2 combination
of factors would need to be simultaneously at work to facilitate the
necessary solutions to the problem under discussion. One such factor
is the realisation of a degree of consensus and co-operation between
the various sectors of society, including the ‘ulama’ and the govern-
ment, and the willingness of the latter to take the necessary steps to
bring internal harmony to its laws. To merge and to unify the Shariah
and modern law into an organic unity would hopefully mean that the

Preface xxi

duality and the internal tension between the two divergent systems
of law could gradually be minimised and removed.

Bearing in mind the myriad and rapidly increasing influences to
which modem society is exposed, the possibility of consensus on
values becomes ever more difficult to achieve. To come to grips
with fuctuations in attitudes towards the basic values that the law
must seek to uphold is perhaps the most challenging task for the
science of jurisprudence in general. To provide a set of criteria
with which to determine the propriety or otherwise of law, and of
effective government under the rule of law, is the primary concern
of jurisprudence.

The Muslim jurist is often criticised for having lost contact
with the changing conditions of contemporary life, in that he has
been unable to relate the resources of Shari‘ah to modem govern
ment processes in the fields of legislation and judicial practice. A part
of the same criticism is also levelled against government in Islamic
countries in that it has failed to internalise sil al-figh in its legislative
practices. The alleged closure of the door of ijtihid is one of the
factors that are held accountable for the gap between the law and its
sources on the one hand, and the changing conditions of society on
the other, The introduction of statutory legislation which has already
become 3 common practice in Islamic countries has also affected the
role and function of ijtihdd. Apart from circumventing the traditional
role of the jurist/mujtahid, the self-contained statutory code and the
formal procedures that are laid down for its ratification have eroded
the incentive to the jurist’s effective participation in legislative
construction. Furthermore, the wholesile importation of foreign
legal concepts and institutions into Islamic countries, and the uneasy
combinations thar this has brought about in legal education and
judicial practice, are among the sources of general discontent. These
and many other factors are in turn accountable for the Islamic
fevivalism/resurgence which many Muslim societies are currently
experiencing.

In view of the diverse influences and the rapid pace of social change
visible in modern society, a measure of uncertainty in identifying
the correct balance of values is perhaps inevitable, But the quest
to minimise this uncertainty must remain the central concem of the
science of jurisprudence, The quest for better solutions and more
refined alternatives lies at the very heart of ijtihid, which must,
according to the classical formulations of usil al-figh, never be dis-
continued, for ijtihad is wajib kafa’z, a collective obligation of the

xxii PRINCIPLES OF ISLAMIC JURISPRUDENCE

Preface xxiii

Muslim community and its scholars to. exert themselves in order to
find solutions to new problems and to provide necessary guidance in
matters of law and religion. But even so, an error in ijtihdd is not
only tolerated but is rewarded according to the sincerity and earnest-
ness of the mujtahid who attempts it. And it is often through such
errors that the best solution can ultimately be reached. One can have
different solutions to a particular problem, and sometimes the best
solution may be known and yet unattainable due to practical con-
siderations that might limit one’s range of choice. In such situations
cone must surely do that which is possible under the circumstances
But it is imperative not to abandon ijtihdd completely. It is a common
and grave error to say that ijtihdd is unattainable and that the con
ditions for its exercise are too exacting to fulfil. To regulate ijtihdd
is indeed the primary objective of usil al-figh and of what this
science teaches regarding the sources of law and methods of inter-
pretation and deduction. A grasp of the concepts and doctrines of ujil
al-figh is not only helpful but necessary to ijtihdd in order to enable
the Muslim jurist and legislator to contribute to the ongoing search
for better solutions to social issues, and will hopefully also demon-
strate that the Sharfah, as well as providing restraints, also possesses
considerable flexibility and resources for accommodating social
change

IV, With regard to the translation of technical Arabic terms, I have
to some extent followed existing works, especially Abdur Rahim's
Principles of Muhammadan Jurisprudence, But in the absence of any
precedent, or when 1 was able to find a better altemative, I have
improvised the equivalent English terms myself, Most of the Arabic
terms are easily translated into English without engaging in techni-
calities, but there are occasions where this is not the case, and at times
the choice of terms is determined by consideration of consistency and
style rather than semantic accuracy. To give an example, one of
the chapters in this book is devoted to the discussion of textual impli~
cations (al-daldlat). The five varieties of textual implications, namely
ibarat al-nass, isharat al-nags, daldlat al-nass, iqtida” al-nass and mafhiim
«l-mukhalafah, cach signify a different concept for which an exact English
equivalent is difficult to find. 1 have always tried to give priority to
semantic accuracy, but as can be seen this is not the only factor that
has determined my choice of ‘explicit meaning’, “alluded meaning
‘implied meaning’, ‘required meaning’ and ‘divergent meaning’ for
the foregoing terms respectively, for at times like this, it becomes

difficult to be semantically exact since the shades of meaning and
concepts tend to overlap somewhat. A measure of technicality and
arbitrariness in the choice of terms is perhaps inevitable in dealing with
certain topics of usill al-figh, such as the classification of words and
the rules of interpretation. On such occasions, I thought it helpful
not to isolate the English terms from their Arabic originals. I have
therefore repeated the Arabic terms frequently enough to relate them
to their English equivalents in the text. But when the reader is not
sure of the meaning of technical terms, a look at the glossary at the
end of the text might prove useful

The translation of the Qur'anic passages in the text is generally
based on Abdullah Yusuf Ali's translation of the Holy Qur'an. On
occasion, however, I have replaced elements in this translation with
easier and more simplified alternatives. Whenever I have done so, it
is usually the result of my having checked more than one translation
The reader will also notice that I have not given the original of the
Quranic passages in Arabic, as this is not difficult to find. Besides,
the Qurdnic text is uniform and there is no variation in the word-
ing of its text in all commonly used printing. But when it comes
to the hadith, although the tain authorities on hadith are inclined
to maintain consistency in both the concept and wording of the
hadith, it is nevertheless not unusual to come across inconsistency or
varistion in the exact wording of a particular hadith in different
sources, Partly for this reason, but also for the sake of accuracy and
convenience, | have given both the Arabic original and the English
translation of a hadith on its frst occurrence in the text. The English
rendering of hadith consists for the most part of my own translation
of the Arabic original; otherwise, I have used the English translation
as and when it was available.

A word may also be in order here regarding the English rendering
of the terms figh and upil al-figh. The difference between them is fairly
obvious in their respective Arabic usages: ul al-figh is unequivocal
in its reference to the ‘roots of figh’. This is, however, not s0 clear in
the equivalent English terms which are currently in use. The terms
*Muhammadan law" and ‘Islamic law’ have often been used in a
generic sense and applied both to figh and wsil al-figh. The same is
true of its familiar alternative, "Islamic jurisprudence’. None of these
convey the clarity which is found in their Arabic equivalents. There
are, for example, books currently available in English bearing one or
the other of the these titles, although their contents do not seek to
distinguish the two disciplines from each another

xxiv PRINCIPLES OF ISLAMIC JURISPRUDENCE

Preface xxv

The term ‘Muhammadan law’ seems to be already falling out of
use, and it has almost become an established practice to reserve
Islamic law’ for figh, and ‘Islamic jurisprudence’ for usil al-figh. This
use of terminology should be retained. A similar distinction between
the terms ‘source’ and ‘proof’ would seem advisable. The former
should, as far as possible, be reserved for the Qur'an and Sunnah, and
the latter for other proofs

My transliteration of Arabic words is essentially the same as that of
the Encyclopedia of Islam (New Edition), with two exceptions which
have become standard practice: q for kand j for dj.

Finally, | would like to take this opportunity to thank most warmly
my colleagues and students at the Faculty of Law, International
Islamic University, with whom I have frequently raised and discussed
matters of mutual interest. ! have often benefited from their views,
which have been taken into account in the present work. I would
also like to thank the secretarial staff of the Faculty for theit unfail-
ing willingness to type for me whenever | approached them. And last
but not least, I wish ¢o thank the library staff of the 1.1.U, for their
assistance, and for being courteous and helpful

V. Since the publication of the first edition of this book in April 1989,
the comments, observations and responses that I have received from
scholars, students, and readers have been very positive and encourag

ing. The changes that I have carried out for the present edition of
the book relate to both its content and format, although the overall
approach to these changes was to leave the bulk of the original work
intact. The changes that I have made are confined to particular parts
and they do not entail a recomposition of the original text. I have
thus added fresh information and elaborated parts of the chapters on
abrogation (naskh), analogical reasoning (giyis), and presumption of
continuity (lstishdb). The new information consists either of the
elaboration of concepts, or the insertion of additional illustrations for
the purposes of clarity and relevance to contemporary concerns in
themes of Islamic jurisprudence. The addition to the chapter on naskh
thus reflects the results of a discussion on a paper entitled ‘The
Nature, Sources and Objective of the Shariah’ which I presented
to a symposium organised by the International Islamic University
in Kuala Lumpur in September 1989. The additions to some of the
other chapters consist mainly of fresh research and expert opinion
on the potential contribution of some of the neglected principles
of ujil al-figh, such as istish’b, to. modem jurisprudence, 1 have

also refined minor portions of the text in the interest of clarity and
precision.

As for the changes of format, these were carried out as a result of
my consultation with the editorial staff of the Islamic Texts Society,
particularly Mobsen al-Najjar and T.J. Winter. It was thus agreed
at the outset to re-set the whole of the original text so as to imple-
ment the standard practice of the Islamic Texts Society conceming
transliteration, footnotes and minor editorial changes in the text
It is thus hoped that these changes have assured the production
of a smoother and more familiar text for readers in Europe and
America

Professor Ahmad Ibrahim, Professor Emeritus and Dean of the
Faculty of Law, International Islamic University, Malaysia, has con-
tributed a new Foreword for the second edition. He was kind enough
to do so despite his numerous other commitments, and preoccupa.
tion with his own writings. I take this opportunity to thank him most
warmly for his valuable contribution, and the fact that he wrote a
Foreword to both the first and the present editions of this book. He
has taken a keen interest in my research and has been most helpful
and understanding in relieving me from other commitments $0 as to
enable me to concentrate on writing and research.

Students and colleagues at che International Islamic University
have been generous and supportive of my endeavours, I take this
‘opportunity to thank them once again for their thoughtful apprecia~
tion. A tangible result of all chis is that this book has now become
a recommended text in a number of courses not only in the Faculty
of Law but also in other faculties and departments of this
University.

Mohammad Hashim Kamali
International Islamic University, Malaysia
March 1991

NOTES

1. Note for example Khudart's, Tartbh al-Tashr alba; Sabai tat, ol-Madbhat
AbsFigh ws Tarihi ale Tach al-Ldrt; CQueyin's ale Tasbe wn l-Figh ft alti Tarn
‘wat Marva, and al-Nabban’s absMadtal i al-Tashet ale litimt: Nich‘, Ausra at
Tanthiyyah, Mustaybsluh, For full pablication data vee my Bibliography
2. Note for exarmple the Internacional Idamic University of Malaysia, and thar of

PRINCIPLE

CHAPTER ONE

Introduction to Usiil al-Figh

I. Definition and Scope

Upil al-figh is concerned with the sources of Islamic law, their order
of priority, and the methods by which legal rules may be deduced
from the source materials of the Sharah. It is also concemed with

lating the exercise of ijtihdd. The sources of the Sharfah are of

two kinds: revealed and non-revealed. Whereas the former provide

the basic evidence and indications from which detailed rules may be
delines
h, or the

derived, the latter provide the methodology and procedural gi

to ensure correct utilisation of the source evidence. Usal al:
roots of Islamic law, thus expound the indications and methodology
by which the rules of figh arc deduced from their source evidence.
The rules of figh are thereby derived from the Qur'in and Sunnah
in conformity with a body of principles and methods which are

collectively known as usill al-figh
Some writers have described ui al-figh as the methodology of law
4 description which is accurate but incomplete. Although methods of
interpretation and deduction are of primary concern to usil al-figh,
the latter is not exclusively devoted to methodology. To say that ujill
al-figh is the science of the sources and methodology of the law is
accurate in the sense that the Qur'an and Sunnah constitute the sources
4s well as the subject-matter to which the methodology of usiil al-figh
is applied. The Qur'an and Sunnah contain both specific injunctions
and general guidelines on law and religion, but it is the broad and
general directives which occupy the larger part of the legal content
of these sources. The general directives that are found in the Qur’in

2 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Introduction to Usa al-Figh 3

and Sunnah are concemed not so much with methodology as with
substantive law and they provide indications which can be used as
material in the development of law. The methodology of usil al:
igh refers mainly to methods of reasoning such as analogy (giy
juristic preference (istihsan), presumption of continuity (istishdb) and
the rules of interpretation and deduction. These are all designed to serve
as an aid to the correct understanding of the sources of Sharf ah and
ijtihad. While the clear directives of the Que’in and the Sunna com~
mand permanent validity, the methodology of wsill does not, for it was
developed after the revelation of the Qur'ln and Suimah came to an
end, and most of it consists of juristic proposinions and (jtihdd advanced
by scholars and ‘wlama’ of different periods. As an instrument of legal
construction and (jtihad, the methodology of usél al-figh must there
fore remain open to further adaptation and refinement in order to
respond to the changing needs of society and civilisation.

To deduce the rules of figh from the indications that are provided
in the sources is the expressed purpose of usiil al-figh. Figh as such is
the end product of ull al-figh; and yet the two are separate disciplines
The main difference between figh and usill al-figh 1s that the former
is concerned with the knowledge of the detailed rules of Islamic law
in its various branches, and the latter with the methods that are
applied in the deduction of such rules from their sources. Figh, in
other words, is the law itself, whereas ujil al-figh is the methodology
of the law, The relationship between the two disciplines resembles
that of the rules of grammar to the language. Usill al-figh in this sense
provides standard criteria for the correct deduction of the tules of
figh from the sources of Shariah. An adequate knowledge of figh
necessitates close familiarity with its sources. This is borne out in the
definition of figh, which is ‘knowledge of the practical rules of Sharf ah
acquired from the detailed evidence in the sources’.' The knowledge
of the rules of figh, in other words, must be acquired directly from
the sources, a requirement which implies that the fagiit must be in
contact with the sources of figh, Consequently, a person who learns
figh in isolation from its sources is not a fagih.’ The fagih must know
not only the rule that misappropristing the property of others is
forbidden, but also the detailed evidence for it in the source, that is,
the Qur'dnic dyah (2:188) which states: "Devour not each other's
property in defiance of the law.”

Be Se Spl ist Vy

This is the detailed evidence, as opposed to saying merely that
“theft is forbidden in the Qur'an’, Figh is acquired knowledge which
is obtained by study and self-application and is therefore different
from inherent knowledge, for example that of God, who is All-
Knowing; it is also different from the knowledge of the Prophet, and
that of the ange! Gabriel, as theirs was given or transmitted to them
essentially through revelation,

The word asl has several meanings, including proof, root, origin
and source, such as in saying that the asl (proof) of this of that rule is
ima; o in the expression, usiil al-figh, which means the roots of figh
‘or its underlying evidence. It is also used in the sense of the original
rule of norm as in the legal maxim that ‘the as! in all chings is permis-
sibility’, or when it is said that al-asl bard’ah al-dhimmah, the norm is
absence of liability. Ay! also means the foundation on which some-
thing is constructed. When it is said, for example, that giyis or analogy
must have an asl, this may be the Que'3n or the Sunnah, Ayl also
means that which is preferable (al-rijih), such as in the saying that
aloasl fi'l kaldm al-hagiqah (the literal meaning is preferable to the
metaphorical one). And lastly, aj! and ujil denote rules of principles
on which a branch of knowledge may be founded, such as in usil
al-hadith, which is equivalent to qawa'id al-hadtth, that is, the rules
governing the science of hadith.

Knowledge of the rules of interpretation is essential to the proper
understanding of a legal text. Unless the texts of the Qur'in of the
Sunnah are correctly understood, no rules can be deduced from them,
especially in cases where the text in question is not self-evident.
Hence, the rules by which one is to distinguish a speculative text from
a definitive one, the manifest (zdhir) from the explicit (masy), the
general (‘dmm) from the specific (khisy), the literal (haglqf) from the
metaphorical (majazi), etc., and how to understand the implications
(dalalat) of a given text, are among the subjects which warrant the
attention in usiil al-figh, An adequate grasp of the methodology and
rules of interpretation also ensures the proper use of human reasoning
ina system of law which originates in divine revelation, For instance,
analogy (giyas) is an approved method of reasoning for the deduction
‘of new rules from the sources of Shariah. How analogy should be
constructed, what its limits are, and what authority it would command
in conjunction, or in conflict, with other recognised proofs are ques-
tions which are of primary concern to usail al-figh. Juristic preference,
or istihsan, is another rationalist doctrine and a recognised proof of
Islamic law, It consists essentially of giving preference to one of the

4 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Introduction to Usiil al-Figh 5

many conceivable solutions to a particular problem. The choice of
one or the other of these solutions is mainly determined by the jurist
in the light of considerations of equity and fairness. Which of these
solutions is to be preferred and why, and what the limits are of personal
preference and opinion in a particular case, is largely a question of
methodology and interpretation and therefore forms part of the
subject-matter of usil al-figh

The principal objective of usill al-figh is to regulate ijtihdd and to
guide the jurist in his effort at deducing the law from its sources. The
need for the methodology of sill al-figh became apparent when
unqualified persons attempted to carry out ijtihiid, and the risk of error
and confusion in the development of Shariah became a source of
anxiety for the ‘wlama’, The purpose of usil al-figh is to help the jurist
obtain an adequate knowledge of the sources of Sharfah and of the
methods of juristic deduction and inference. Usa al-figh also regulates
the application of giyds, istibsiin, istighdb, istislah, etc., whose know-
ledge helps the jurist to distinguish which method of deduction is best
suited to obtaining the hukm shart of a particular problem. Further-
more, wil al-figh enables the jurist to ascertain and compare strength
and weakness in jjtihdd and to give preference to that ruling of ijtilidd
which is in close harmony with the musiis.

It may be added here that knowledge of the cules of interpretation,
the ‘dmm, the khass, the mutlag, the mugayyad, etc., is equally relevant
to modern statutory law. When the jurist and the judge, whether a
specialist in the Sharf‘ah of in secular lw, fails to find any guidance
in the clear text of the statute on a particular issue, he is likely vo
resort to judicial construction or to analogy, The skill, therefore, to
interpret a legal text and to render judicial decisions is indispensable
for a jurist regardless of whether he sits in a Shariah court of in a
court of statutory jurisdiction. A specialist in wil al-figh will thus find
his skill of considerable use in the understanding and interpretation
of any legal text.?

To what extent is it true to say that al-Shafi'l was the founder of
usiil al-figh? One theory has it that sil al-figh has existed for as long
as figh bas been known to exist. For figh could not have come into
being in the absence of its sources, and of methods with which to
utilise these source materials.* This would, in turn, imply that «sil al-
figh existed long before al-Shafi'l. Numerous examples could be cited
to explain how, in early Islam, the Companions deduced the rules of
figh from their sources. Usiil al-figh, in other words, had existed well
before the period that saw the emergence of the leading imams of

jurisprudence. But it was through the works of these imams, especi-
ally al-Shafi't, chat usil al-igh was articulated into a coherent body of
knowledge, Even before al- Shafi‘, we know that Aba Hanifah resorted
to the use of analogy and istibsin, while Imam Malik is known for
his doctrine of the Medinan ima’, subjects we shall have occasion to
retum to, When al-Shifi'l came on the scene, he found a wealth of
Juristic thought and advanced levels of argumentation on method-
ological issues, Bur the existing works were not entirely free of
discordance and diversity, which had to be sifted through by the
standards which al-Shifi'l articulated in his legal theory of the ssi
He devoted his Risdlah exclusively to this subject, and this is widely
acknowledged to be the fint work of authonty on gill al-figh,

It is nevertheless accurate to say that figh precedes usiil al-figh and
that it was only during the second Islamic century that important
developments took place in the field of usa al-figh,’ since dunng the
first century there was no pressing need for usil al-figh. When the
Prophet was alive, the necessary guidance and solutions to problems
were obtained either through divine revelation, or his direct ruling.
Similarly, during the period following the demise of the Prophet, the
Companions remained in close contact with the teachings of the
Prophet, and their decisions were mainly inspired by his precedent.
Their proximity to the sources and intimate knowledge of events,
provided them with the authority to rule on practical problems with-
‘out there being a pressing need for methodology.’ However, with
the expansion of the territorial domain of Islam, the Companions were
dispersed and direct access to them became increasingly difficult
With this, che possibility of confusion and error in the understand
ing of the textual sources became more prominent, Disputation and
diversity of juristic thought in different quarters accentuated the need
for clear guidelines, and the time was ripe for al-Shafi'l to articulate
the methodology of usil al-figh. Al-Shafi'T came on the scene when
juristic controversy had become prevalent between the jurists of
‘Medina and Iraq, respectively known as ahl al-badith and abl al-ra'y.
‘This was also a time when the ‘ulama’ of hadith had succeeded in their
efforts to collect and document the hadith. Once the fugahd’ were
assured of the subject-matter of the Sunnah, they began to elaborate
the law, and thus the need for a methodology to regulate ijtihad
became increasingly apparent. The consolidation of ssi al-figh as
‘Sharah discipline was, in other words, a logical conclusion of the
compilation of the vast literature of hadith.” .

Finally, among the factors which prompted al-Shifi'l into refining

6 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Introduction to Usiil al-Figh 7

the legal theory of upd al-figh was the extensive influx of non-Arabs
into Islamic terntories and the disconcerting influence that this
brought about on the legal and cultural traditions of Islam. Al-Shafi'l
was anxious to preserve the purity of the Shari'ah and of the language
of the Qur'an, In his Risdlah, al-ShaficT enacted guidelines for ijtihad
and expounded rules governing the khass and the ‘dmm, the ndsileh
and the mansiikh, and articulated the principles governing ijma* and
giyas, He set out the rules for relying on the solitary hadith (khabar al-
wwihid) and its value in the determination of the abkim. Al-Shifi'l
refuted the validity of istihsdn and considered it to be no more than
an arbitrary exercise in law-making. Admittedly, al-Shifi‘l was not
the first to address these matters, but it is widely acknowledged that
he brought coherence to usa al-figh, which had hitherto remained
scattered and unconsolidated.*

It will be noted in this connection that the Sht'T ‘wlama’ have
claimed that their fifth mam, Muhammad al-Baqir, and his son and
succesor, Ja‘far al-Sidig, were the first to write on the subject of weil
According to Abd Zahrah, who has written extensively on the lives
and works of the early imams, the Shi imams have, like many others,
written on the subject, but neither of the two imams have written
anything equivalent to the Risdlah. Hence al-Shafi'ts position and
contribution to 1! al-figh remains unique, and he is rightly regarded
as the founder of wll alsfigh®

The basic outline of the four principal sources of the law that al-
Shafiil spelt out was subsequently accepted by the generality of
ulama’, although each of the various schools of jurisprudence has
contributed to its further development. The Hanatls, for example,
added istihsdn and custom (‘wrf) to the upd! al-figh, and the Malikis
limited the concept of consensus (ijmd") to the Medinan consensus
only, while the Hanbali approach to the subject closely resembled
that of the Milikis, Even so, none departed significantly from the
basic principles al-Shafi'l articulated."

Broadly speaking, the so-called closure of the gate of ijtihad at
around the fourth Islamic century did not affect usil al-figh in the same
way that it might have affected figh itself: The era of imitation (taqltd)
which followed might even have added to the strength and prom-
inence of usiil al-figh in the sense that the imitators observed, and
relied on, the methodology of the usiil as a yardstick for the validity
for their arguments. Consequently, ssi! al-figh gained universal
acceptance and was, in a way, utilised asa means with which to justify
taglid.*

A brief word may be added here regarding the difference between
the usiil and the maxims of figh (al-qauiid al-fighiyyah), as the two are
sometimes confused. The maxims of figh refer to a body of abstract
rules which are derived from the detailed study of. figh itself. They
consist of theoretical guidelines in the different areas of figh such as
evidence, transactions, matrimonial law, etc, As such they are an
integral part of figh and are totally separate from usa al-figh. A large
number of legal maxims have been collected and compiled in works
known as al-ashbth wa al-nazi'ir;* one hundred of these have been
adopted in the introductory section (i.¢. the first 100 articles) of the
Ottoman Majallah. The name “al-qawTid al-fighiyyah’ may resemble
the expression upi! al-figh, but the former is not a part of the latter
and the two are totally distinct.

A comparison between usill al-figh and usil al-ginin, on the ather
hand, will indicate that these two disciplines have much in common,
although they are different in some respects, They resemble one
another in that both are concerned with the methodology of the law
and the niles of deduction and interpretation; they are not concerned
with the detailed rules of the law itself, In the case of the law of prop
ery, for example, both ssi! al-figh and uyil al-gdndn are concerned
with the sources of the law of property and not with the detailed rules
governing transfer of ownership or regulating the contract of sale.
These are subjects which fall within the scope of the law of property,
not the methodology of law.

Although the general objectives of usil al-figh and usill al-ganan ate
similar, the former is mainly concemed with the Qur'4n, Sunnah, con-
sensus and analogy. The sources of Shariah are, on the whole, well-
defined and almost exclusive in the sense that a rule of law or a hukm
shar't may not originate outside the general scope of its authoritative
sources on grounds, for example, of rationality (‘agl) alone, for ‘agl is
not an independent source of law in Islam. Ud al-figh is thus founded
in divine ordinances and the acknowledgement of God's authority
over the conduct of man.

Usal al-ginan, on the other hand, consist mainly of rationalist
doctrines, and reason alone may constitute the source of many a
secular law. Some of these are historical sources such as Roman Law
or British Common Law whose principles are upheld or overruled
in light of the prevailing socio-economic conditions of society. The
sources of Shari'ah, on the other hand, are permanent in character
and may not be overruled’on grounds of either rationality or the
requirements of social conditions. There is, admittedly, a measure of

8 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Introduction to Usiil al-Figh 9

flexibility in usil al-figh which allows for necessary adjustments in the
law to accommodate social change. But in principle the Shantah and
its sources can neither be abrogated nor subjected to the limitations
of time and circumstance. The role of the jurist and the mujtahid in
usiilal-figh is basically to deduce and infer rules that are already indi~
cated in the sources, while this is not necessarily the case with regard
to usil al-ginin. The Parliament or the legislative assembly of a
‘Western state, being the sovereign authority, can abrogate an exist=
ing statute or introduce a new law as it may deem fit. The legislative
organ of an Islamic state, on the other hand, cannot abrogate the
Qurn of the Sunnah, although it may abrogate a law which is based
on maslabah of istibsan, etc. Abrogation is, on the whole, of limited
application to the definite rulings of divine revelation, and basically
came to an end with the demise of the Prophet."?

Sovereignty in Islam is the prerogative of Almighty God alone. He
is the absolute arbiter of values and it is His will that determines
good and evil, right and wrong. It is neither the will of the ruler nor
of any assembly of men, nor even the community as a whole, that
determines the values and the laws which uphold those values. In its
capacity as the vicegerent of God, the Muslim community is entrusted
with the authority to implement the Shariah, to administet justice
and to take all necessary measures in the interest of good government
The sovereignty of the people, if the use of the word ‘sovereignty’ is
appropriate at all, is a delegated, or executive, sovereignty. (suits
tanftdhi) only.'* Although the consensus ot ijmi of the community,
or of its learned members, is a recognised source of law in Islam, in
the final analysis, ijm’ is subservient to divine revelation and can
never overrule the explicit injunctions of the Qur’in and Sunnah.
The role of the ballot box and the sovereignty af the people are thus
seen in a different light in Islamic law than they are in Westem
jurisprudence,

And lastly, unlike its Western counterpart, Islamic jurisprudence is
hot confined to commands and prohibitions, and far less to commands
which originate in a court of law. Its scope is much wider, as it is not
only concemed with what a man must do or must not do, but also
with what he ought to do or ought not to do, and the much larger
area of permissibilities (mubahat) where his decision to do or to avoid
doing something is his own prerogative. Usil alfigh provides guidance
in all these areas, most of which remain outside the scope of Western
jurisprudence.

Il, Two Approaches to the Study of Usil al-Figh

Following the establishment of the madhahib, the “ulama’ of the
various schools adopted two different approaches to the study of usil
al-figh, one of which was theoretical and the other deductive. The
main difference between these approaches is one of orientation rather
than substance. Whereas the former is primarily concemed with the
exposition of theoretical doctrines, the latter is pragmatic in the sense
that theory is formulated in the light of its application to relevant
issues, The difference between the two approaches resembles the
work of a legal draftsman as compared to the work of a judge. The
former is mainly concemed with the exposition of pnaciples whereas
the latter tends to develop a synthesis between the principle and the
requirements of a particular case. The theoretical approach to the study
of usil al-figh is adopted by the Shifi'l school and the Mutakallimain,
that is the ‘wlamd’ of kaldm and the Mu'tazilah, The deductive
approach is, on the other hand, mainly attnbuted to the Hanafls. The
former is known as usd! al-shafi'iyyah or farigah al-mutakallimin,
whereas the latter is known as usil al-hanaflyyah, or pariqah al-fugaha

Al-Shifi't was mainly concemed with articulating the theoretical
principles of usil al-figh without necessanly attempting to relate these
to figh itself. As a methodologist par excellence, he established a set of
standard criteria which he expected to be followed in the detailed
formulation of the rules of figh. His theoretical exposition of wil al-
{figh, in other words, did not take into consideration their practical
application in che area of the furl’, In addition, the Shafi'ls and the
Mutakalliman are inclined to engage in complex issues of a philo-
sophical character which may or may not contribute to the develop-
ment of the practical rules of figh. In this way, subjects such as the
“igmah (infallibility, innocence) of the prophets prior to their prophetic
mission, and matters pertaining to the status of the individual or his
duties prior to the revelation of the Sharfah, and also logical and
Linguistic matters of remote relevance to the practical rules of figh,
tend to feature more prominently in the works of the Sbafi'ls and
Mutakalliman than in those of the Hanafis. The Hanafis have, on the
other hand, attempted to expound the principles of us al-figh in
conjunction with figh itself and tend to be more pragmatic in their
approach to the subject. In short, the theoretical approach tends to
envisage usill alefigh a8 an independent discipline to which figh must
conform, whereas the deductive approach attempts to relate usill al-
figh more closely to the detailed issues of the funt” al-figh. When, for

10 PRINCIPLES OF

Introduction to Unil al-Figh 11

nciple of figh

the conflict an

tent
make the n

Three of the
approach to usa! al-figh an

most important works that

scholar, Abd al-Husayn al-Bisrt (d. 436 ant
Shaft scholar Imam al-Haramayn ab-} 457 AN)
Mustay of Imam Aba Ht id. s05 AM). These thr
works were later summarised by Fakbr al-Din al-Razi (d._ 606 am) in
his work entitled Mas al, Sayf al-Din al-Am work, al

Ikan ft Usa al uated 9 three

pioneering works eeseoye

The earliest Hanafl work on upill al
al-Hasan al-Karkht (4
of Aba Bakr al-Razt abJagas (d
(d. 483. An) w own work, Upil
conformity with the Hana sciphne.
This was followed by an equally outstanding coatribution by Shams
al-Din al-Sarakhst (d. 490 a1) ening the title, { A
number of other ‘lam ‘buted to
both camps. But a difference of format which marked a new sage
of development was the writing of handbooks in the form. of
mukiuayars with a view co summarising the exiting works for
didactic purposes

The next phase in the development of literature on usll al-figh was
murked by the attempt to combine the theoretical and deductive
approaches into an integrated whole, which is reflected in the works
of both the Shifi'l and Hanafi ‘wlamd’ of later penods. One sach work
which attempted to combine al-Bazdawi's Upil and al-Anndt’s al-
Thkim was completed by Muzatlir al-Din al-Si'ati (d. 694 ant), whose
title Radi al-Nizdm al-fimi’ bayn Usil al Bazdawi see alld is set
explanatory as to the approach the author has taken. Another equally
significant work combining the two approaches was completed by Sadr
al-Shari'ah ‘Abd Allah ibn Mas‘dd al-Bukhiri (d. 747 an) bearing the
title al-Taw¥th, which is, in tum, a summary of Usil al-Bardant, ale
Mabsiil and the Mukhtasar al-Muntahd of the Maliki jurist, Aba “Unur
Uthmin ibn al-Hayib (d. 646 an). Three other well-known works that
have combined the two approaches to will al-figh are fam’ al-fawibmi’
of the Shafi't jurist Taj al-Din al-Subki (4. 771 am), al- Tabefr of Kamal
al-Din ibn al-Humim al-Hanafi (4, $60.48), and Musallane al-Thubie

gh is
340 aut), which wa
370 Al). Fakh
al Bs

approach two

Bazdawt's

-Islien a!

have coe

of the Hanaff juris Mubibb al-Din ibn ‘Abd al-Shkar (d. 1119 an)
And finally, this list would be deficient without mentioning Abi
Ssbig Ibrahim al-Sharibt’s a!-Muwifagat, which is comprehensive and
perhaps unique in its attention to the philosophy (hikmah) of tashrr
and the objectives that are pursued by the d rulings of the

Shart ah.

Ill. Proofs of Sharfah (al-Adillah al-Shariyyah)

The adillal shar iyyah and the alam, that is, the laws or values that

regulate the conduct of the mukallaf, are the two principal themes of
usiil al-figh. Of these two, however, the former is by far the more
important as, according to some ‘wlamd’, the abhdm are derived from
the adillah and are therefore subsidiary to them. It is perhaps in view
of the central importance of these two topics to usiil al-figh that al-
Amidi defines the latter as the science of the ‘proofs of figh (adillah
sb-figh) and the indicanons that they provide in tegard to the ahkim
of the Shar ah’.'*

A. bukm (pl. abkdm) means proving or establishing one thing in
respect of another, which may either be affirmative or negative. Thus
when we way that the water is or 18 not cold, or that the sun has or has
not risen, we have issued a hide in each case. A hukm in its juridical
sense is used mainly to establish a certain value, such as an obligation
(wwii), recommendation (nadb), or 3 command or prohibison in
respect of the act of legally competent pervon.

Literally, dali! means guide, and it is used interchangeably with
proof, indication or evidence. Technically, it is an indication in the
sources from which a practical rule of Shar ah, ot a hukm, is deduced,
The hum so obtained may be definitive (gar'f) or it may be specula-
tive (zannl) depending on the nature of the subject, the clarity of the
text, and the value which it seeks to establish." In the terminology
‘of upill al-figh, adillah shar iyyah refer to four principal proofs or sources
of the Sharf ah, namely the Qur'in, Sunnah, consensus and analogy
Dail in this sense is synonymous with ayl, hence the four sources of
Sharf ah are known both as adillah and upal, There are a number of
4yir in the Qur’sn which identify the sources of Shariah and their
order of priority. But one passage in which all the principal sources
are indicated occurs in sins al-Nis3' (4258-59): O you believers! Obey

God and obey the Messenger and those of you who are in charge of
affairs. If you have 2 dispue conceming any matter, refer it to God
and to the Messenger.”

12 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Introduction to Usill al-Figh 13

PM daly Se ably St abl 1 oT oi ity
Spey sil Mf op2 db ect pce sly Op Se

‘Obey God! in this dyah refers to the Qur'in, and "Obey the
Messenger’ refers to the Sunnah, Obedience to “those who are in
charge of affairs’ is held to be a reference to {jma’, and the last portion
of the dyah which requires the referral of disputes to God and to the

Messenger authorise yds is essentially an extension of the
injunctions of the Qur'in and Sunnah, The rationale or the effective
cause of giyiis may be clearly indicated in these sources or it may be
identified by way of inference (istinbaj). In either case, qiyds essen-
tially consists of the discovery of a hulm which is already indicated
in the divine sources."”

Some figahd’ have drawn a distinction between dali! and amarah
(lit, sign of allusion) and apply dali! to the kind of evidence that leads
to a definitive ruling or that which leads to positive knowledge (‘ilm)
Amarah, on the other hand, is reserved for evidence or indications that
only lead to a speculative ruling,” In this way, the term “dali?” would
only apply to definitive proofs, namely the Qur'an, Sunnah and ijma,
and the remaining proofs, which comprise a measure of speculation,
such as qiyis, stihsin, etc., would fall under the category of amarae

The proof of Shari'ah have been further divided into transmitted
proofs (adillah nagliyyah) and rational proofs (adillah ‘aghiyyah). "The
authority of the transmitted proofs is independent of their conformity
or otherwise to the dictates of reason, although, as we shall elaborate
later, most of the transmitted proofs can also be justified rationally.
However, the authority and the binding force of the Qur'an, Sunnah
and ijmat are independent of any rational justification that might exist
in their favour, To these are added two other transmitted proofs,
namely the rulings of the Companions, and the laws revealed prior
to the advent of Islam (shard’i* man qabland).*"

The rational proofs are, on the other hand, founded in reason and
heed to be rationally justified. They can only be accepted by virtue
of their rationality. Qiyds, istibsdn, isnislah and istishab are basically all
rationalist doctrines although they are in many ways dependent on
the transmitted proofs, Rationality alone is not an independent proof
in Islam, which is why the rational proofs cannot be totally separated
from the transmitted proofs, Qiyiis, for example, is a rational proof,
but it also relies on the transmitted proofs to the extent that giyas, in

giyas, as

order to be valid, must be founded on an established hukm of the
Qur’in, Sunnah or ijma. However, the issue to which giyads is applied
(ie. the far) must have an ‘illah (effective cause) in common with the
original bukm. To establish the commonality of the ‘illah in giyas is
largely a matter of opinion and ijtihad. Qiyis is therefore classified under
the category of adillah ‘agliyyah. As already indicated, the division of
proofs into the transmitted and rational categories is not mutually
exclusive as neither of them can function in total isolation: utilising
the transmitted proofs for or against something necessarily relies on
reason, which is the human tool for comprehension. Similarly, an
opinion or ni’y can be utilised as the basis for a hukm when it is
supported by a transmitted proof

As noted above, the adillah shar iyyah are on the whole in harmony
with reason. This will be clear from the face that the Sharf‘ah in all
its parts is addressed to the mukallaf, that is, the competent person
who is in possession of his faculty of reason. The Sharfah as a whole
docs not impose any obligation that contradicts the requirements of

‘aql. Since the criterion of obligation (takli/) is ‘agi, and without it all
legal obligations fl) to the ground, it follows that a hukm shar! which
is abhorrent to ‘agl is of no consequence.#

‘The adillah shar tyyah have been further classified into mustayillah and
mugayyadah, that is, independent and dependent proofs respectively.
Each of the first three sources of the Sharf‘ah is an independent asl,
‘of dalfl mustagil, that is, a proof in its own right. Qiyds, on the other
hand, is an jl oF dali! mugayyad in the sense, as indicated above, that
its authority is derived from one or other of the three independent
sources. The question may arise as to why imi has been classified as
an independent proof despite the fact that it is often in need of a basis
(sanad) in the Qur’in or the Sunnah. The answer to this is that ijma
is in need of a sanad in the divine sources for its formulation in the
first place. However, once the ima is concluded, it is no longer
dependent on its sanad and it becomes an independent proof. Unlike
giyds, which continues to be in need of justification in the form of a

illah, a conclusive ijmi is not in need of justification and is therefore
an independent ajl.”?

Another classification of adillah is their division into definitive
(qat'f) and speculative (zannt) proof. This division of dalil shart takes
consideration of the proof of Shari'ah not only in their entirety but
also in respect of the detailed rules which they contain, In this way,
the Qur'in, Sunnah and ijmif are definitive proofs in the sense that
they are decisive and binding, However, each of these sources contains

14 PRINCIPLES OF ISLAMIC JURISPRUDENCE

speculative rules which are open to interpretation. A dalil in this sense
ha bukm. A dalil mi
ig (daldlah). The clear injunctions of

is synonymous w be qaft in respects of both

transmission (riwiyah) and mean’

the Qur

nand hadith mutawdtir are all gaf't in
ning. We
n the context of the characteristi

hae the Qi

spect of both trans

later to elaborate on

have Occasio

mission and me
this subject
legislation. Suffice it here to say

tures of Q

An is authentic in all i

parts, and therefore of proven authenticity (gaf‘i al-thubat), The soli-
tary, or dhdd, hadith on the other hand is of speculative authenticity
and therefore falls into the category of speculative proofs."* Similarly

ched_ us by continuous testimon’

a ruling of ijmi may have re

(tawitur), in which case it will be defini

ly proven (gaff al-thubs
But when jjmd’ is transmitted through solitary reports, its auth
will be open to doubt and therefore =

enticity

ini al-thubat

And lastly, the adillah are classified under the following three
categoriey: proof about which there is unanimous agreement, and
these include the Qur'an and Sunnah. Secondly, proofs about which

the vast majority (jumhdr) are in agreement, and these include general
consensus (ijn

Mu'tazilah
and the Ja'fari Shi‘ah have disputed the auth
proofs about which th

) and analogy (qiyis). The Nagzim faction of the

nd some Khanyites h

1¢ rejected ijmit, whereas the Zahiris
ity of giyds. Thirdly
rally disagreed, and this

lama” have gi

category includes virtually all the remaining varicues of rational
proofs, such as juristic preference (istihsin), the consideration of public
interest (istisldh), the presumption of continuity (istishdb), customs (‘urf)
revealed laws prior to the Shari'ah of Isham, and the verdict (fatuil) of
the Companions, Some ‘wlama’ have recognised these as valid proofs
and others have not. Even among those who accept the validity of
these proof in principle, there are differences in the degree of prom.
inence they have given them, and in the range of conditions they
might have proposed in each case in order to verify the validity and
proper application of a particular proof.

The text of the Qur'an or the hadith may convey a command or
4 prohibition. According to the general rule, a command (amr) conveys
obligation (wujiit), and prohibition (nahy) conveys tabrim unless there
is evidence to suggest otherwise. It is in the light of the wording of
the text, its subject-matter and other supportive evidence that the
precise shar'f value of a textual ruling can be determined. A command
may. thus imply a recommendation (nadb) or mere permissibility
(ibahah) and not wujib. Likewise, a prohibition (nahy) in the Qur'an
or the Sunnah may be held to imply abomination (kardhali) and not

Introduction to Upil al-Figh 15

necessarily tahrim, Consequently, when the precise value of the gar‘i
and the zanni on the scale of five values is not self-evident, it is deter-
mined by supportive evidence that may be available in the sources,
or by ijtihad. The gaf't «

¢ Qur’In and Sunnah is basically not open
to interpretation. The scope of interpretation and jjtihdd is conse-
quently confine¢

to the ganni proofs alone.

NOTES

1 Amid, phim. 1, 6 Shawkdet, tobi, p. 5
2. CE AbG Zahrab, Ul p. 6

j. CE Badri, Ul, pp. 37-8
4. CL AbO Zahoah, Liat pp. a4
AL, “Tim, p. 16; AbG Za
pp. 161

C£ Badean, Us, p
6. Thi, p14

9 Aba Zabeah, Usa, js 15. Madan, Cia, p. 4
yo. Badri, Ui p14

Hie Tid Be 84

13, Two welkknown works both bearing the title alAsshih

ahNagd'ir are

authored by Jalil al-Din al-Suydtt and thn Nujaym al-Hanafl respectively
}. CE Badean, Uy, pp. 41-1
14. CL Zaydin, al-Fard we al-Daavtah, p36.
14. AbO Zahrah, Ul, pp. 14=20; HG, al: Wajte, pp 1y~"a; Zohayr, Und, 1, 4

16 Amid, Ihkibn, f, 7; Badin, Chal, p. 96.
17. Zayed, al- Walle, 9 9
W® Ibid, pg Badean, Cdl, pads Mind, Waite, pg
19. CL Badin, Ups, pp, $12
Armd, bhi, 1, 9
31, Cf Badin, Uh pp. sans
1, Skim, Ul, v0; Badvin, Chat, psc
2y. Amid, Mion, 1, 2
24. Shawl, Jnhld, p. 47; Hadean, Upil, p. sys Mika, Walla, p. 305
af. Zaydlin, Wate, p. 14%
26. Khalla6, “tlm, p. 35, AbO Zahesh, Usd, p. 72; ShaltOe, abLstim, ps 49%

CHAPTER TWO

The First Source of Shari‘ah:
the Qur’an

Being the verbal noun of the root word qara’a (to read), “Que'dn’
ne book
containing the speech of God revealed to the Prophet Mubammad
in Arabic
Ic is a proof of the prophecy of Muhammad, the most authoritative
guide for Muslims, and the first source of the Shart“ah, The ‘wlama’

literally means ‘reading’ or ‘recitation’. It may be defined as

and transmitted to us by continuous testimony, oF faus

are unanimous on this, and some even say that it is the only
and that all other sources are explanatory to the Qur'dn, The salient

attributes of the Qur'in that are indicated in this definition may

puree

be summarised as five: it was revealed exclusively to the Prophet
Mubammad; it was put into writing; it is all mutawatir; it is the
inimitable speech of God; and it is recited in salah, The revelation of
the Qur'an began with sGra al-‘Alag (96:1) starting with the words,
Read in the name of your Lord’

and ending with the ayah in sr al-Ma’idah (5:3); ‘Today I have
perfected your religion for you and completed my favour toward
you, and chosen Islam as your religion.”

ge Se cally (Sis Sb LAS pl
be PLY Seay

The First Source of Shari'ah: the Qur’in 17

Learning and religious guidance, being the first and the last themes
of the Qur'snic revelation, are thus the favour of God upon mankind

The Qur'an itself indicates that it was sent down and revealed in
three successive stages. The first descent was to Lawh al-Mabfuz (the
‘guarded tablet’) in a manner and time that is not known: ‘Nay it is
a glorious Qur'an in a guarded tablet’ (al-Burfj, 85:21~22),

Bye cH VATS yw Je

The second descent was to the lowest heaven, described as hayt al-
izzah (‘the abode of honour’) and this occurred in the night which
the Qur'dn names Laylah al-Qadr: “Truly We revealed it on the
Night of Majesty’ (al-Qadr, 97:1),

pal als. Q old gl uy

And then we read in another place "Truly We revealed it on a blessed
night’ (al-Dukhin, 44:3).

Tye ay g ol yy

Both these passages suggest that the second stage of the revelation
occurred in a single night, which is further specified as one of the last
ten nights in the month of Ramadan. Thus it was only in the last of
the three stages chat the Qur'an was revealed to mankind gradually,
in about twenty-three years, through the mediation of the archangel
Gabriel: “The Faithful spirit brought it down on your heart that you
may be a wamer’ (al-Shu'ard, 26: 193-194)

carbo 0S Hai le vel cyte dy

There are 114 sOras and 6235 dyat of unequal Jength in the Qur'an.
The shortest of the sdras consist of four and the longest of 286 dya
Each chapter has a separate tite. The longest siras appear first and
the sras become shorter as the text proceeds. Both the order of the
ylt within cach sta, and the sequence of the slras, were re-arranged
and finally determined by the Prophet in the year of his demise.
According to this arrangement, the Que'in begins with sira al-Fitibah
and ends with sira al-Nis.’

The contents of the Qur'an are not classified subject-wise, The dyat
on various topics appear in unexpected places, and no particular order

18 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The First Source of Shariah: the Qur'an 19

can be ascertained in the sequence of its text. To give just a few
examples, the command concerning salah appears in the second srs,
in the midst of other dyat which relate to the subject of divorce (al-
Baqarah, 2:223-248). In the same sira, we find rules which relate to
wine-drinking, apostasy and war, followed by passages concerning
the treatment of orphans and the marriage of unbelieving women (al-
Bagarah, 2:216-221), Similarly, the dydt relating to the pilgrimage of
haji occur both in stra al-Bagarah (2:196-203) and sGra al-Haij
27). Rules on marriage, divorce and revocation (rijfah) are
found in sQras al-Baqarah, al-Talaq, and al-Nisi', From this a conclu-
sion has been drawn that the Que’n is an indivisible whole, and a
guide for belief and action that must be accepted and followed in its
entirety, Hence any attempt to follow some parts of the Qur’in and
abandon others will be totally invalid. This is in fact the purport of
the Qur'inic text (al-Ma’idah, §:49) where the Prophet has been
wamed: ‘Beware of them [ie. the unbelievers] lest they take you
away from a part of that which God has sent down to you."?

(22:26

SLY Bi at awe ge Aycy Of pazdoly

The Qur'dn consists of manifest revelation (why zahis), which is
defined as communication from God to the Prophet Mubammad,
conveyed by the angel Gabriel, in the very words of God. This the
Prophet received in a state of wakefulness, and thus no part of the
Qur'an originated in internal inspiration or dreams. Manifest revela~
tion differs from internal revelation (wuly bain) in that the latter consists
of the inspiration (ilhdm) of concepts only: God inspired the Prophet
and the latter conveyed the concepts in his own words. All the
sayings, or hadith, of the Prophet fall into the category of internal
revelation and, as such, are not included in the Qur’Sn. A brief word
may be added here concerning hadith qudst. In this variety of hadith,
the Prophet narrates a concept directly from God which may consist
either of waby zahir or wahy bafin, but the latter is more likely. Hadith
qudst differs from the other varieties of hadith in form only. The
Prophet himself has not distinguished hadith qudsi from other hadith
it was in fact introduced as a separate category by the ‘ulama” of hadith
ataround the fifth century Hijrah. Hadfth in all of its varieties consists
of divine inspiration which is communicated in the words of the
Prophet. No hadith may be ranked on equal footing with the Qur'an.
Thus salih cannot be performed by reciting the hadith, nor is the
recitation of hadith considered of the same spiritual merit as reciting

the Qur’in.* The Qur'an may not be read nor touched by anyone
who is not in state of purity (jaharah), but this is not a requirement
with regard to hadith qudst

The Qur'in explicitly states that all of it is communicated in pure
and clear Arabic (al-Nabl, 16:30). Although the ‘wlama' are in agree-
ment that words of non-Arabic origin occur in the Qur’in, these are,
nevertheless, words which were admitted and integrated into the
language of the Arabs before the revelation of the Qur'an. To give
just a few examples, words such as gists (scales ~ occurring in the sra
al-Isel, 17:39), ghasedg (intensely cold ~ in stra al-Naba’ (78:25) and
sijjtl (baked clay —in al-Hijr, 1 5°74) are of Greek, Turkish and Persian
origins respectively.’ But this usage is confined to odd words; a phrase
or a sentence of non-Arabie origin does not occur in the Qur'in.
Since the Qur'an consists of manifest revelation in Arabic, translations
of the Qur'Jn into another language, of its commentaries whether in
Arabic or in other languages, are not a part of the Qur'in. However,
Imam Abo Hanifah has held the view that the Qur'an is the name
for a meaning only and, as such, salah may be performed in its Persian
translation. But the disciples of Ab Hanifah have disagreed with this
view and it is reported that AbO Hanifah himself reversed his initial
tuling, and this is now considered to be the correct view of the Hanafl
school.”

The Prophet himself memorised the Qur'in, and so did his
Companions. This was, to a large extent, facilitated by the fact that the
Qur'in was revealed piecemeal over a period of twenty-three years
in relation to particular events. The Qur'an itself explains the rationale
of graduality (ranjim) in its revelation as follows: "The unbelievers say,
why has not the Qur’n been sent down to him [Mubammad} all at
once. Thus [it is revealed] that your hearts may be strengthened, and
We rehearse it to you gradually, and well-arranged! (al-Furqin, 2:32)

Saely tLe oT di ale Jp Vp 1g AS cath by
GF etsy, Jatpa ced HS
Elsewhere we read in the text: ‘It is a Qur'in We have divided into

parts in order that you may recite it to people at intervals: We have
revealed it by stages’ (al-lsr3", 17:106).

Wp ald fy ES le Al de al fs old 9 UL Ay

20 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The First Source of Sharial: the Qur’in 21

In yet another passage, God Almighty addreses the Prophet: "By
degrees shall We teach you to declare [the mestage] so that you do
not forget’ (al-A'la, 87:6)

went Hb eh

Graduality in the revelation of Qur’in afforded the believers an
opportunity to reflect on it and to retain it in their memories
Revelation over a period of time also facilitated continuous contact
between the believers and a renewal of spiritual strength, so that the
hostility of the unbelievers toward the new faith did not weaken the
hearts of the Muslims. Furthermore, in view of the widespread
illiteracy of the Arabs at the time, had the Qur'an been revealed all
at once, they would have found it difficult to undentand, Attention
was thus initially focused on the rejection of false beliefs and super-
stitions. This was a preparatory stage for the next phase of teaching,
which was concemed with the basic dogma and value structure of
Islan; this was followed by the nules of ‘ibildat leading in turn to a fuller
exposition of the rules of mudmalat, Bur this is only a broad deserip-
tion of the thematic aspect of tanjim (also known as tadamy)) as we
should note that a considerable portion of the Qur'in was revealed
in response to questions that the Prophet was being asked from time
to time, and also the events that were experienced throughout the
years of the revelation. Graduality provided the opportunity to rectify
any errors that the Muslims, of even the Prophet himself, might have
committed and lessons that could be learned from them. Lastly, the
phenomenon of naskh (abrogation), that is abrogation of an earlier
ruling at a later stage owing to change of circumstance, is also con
nected with the gradual unfolding of the Qur'an, but we shall have
more to say on this subject later. Qur’dnic legislation conceming
matters which touched the lives of the people was therefore not
imposed all at once, It was revealed piecemeal so as to avoid hardship
to the believers.” The ban on the consumption of alcohol affords an
interesting example of the Qur'Snic method of graduality in legisla-
tion, and thraws light on the attitude of the Qur’in to the nature and
function of legislation itself. Consumption of alcohol was, apparently,
subject to no restriction in the early years. Later, the following Quranic
passage was revealed in the form of a moral advice: "They ask you
about alcohol and gambling. Say: in these there is great harm and
also benefit for the people, but their harm far outweighs their benefit"
(al-Bagarab; :219),

Gilg oS Al eed Badly 2H oe bl
Lagat oo ST lage tll

Then offering prayers while under the influence of alcohol was
prohibited (al-Nist', 4:43). Finally, a total ban on wine-drinking was
imposed (al-Ma‘idah, $:90-91) and both alcohol and gambling were
declared to be ‘works of the devil
and rancour among you

The devil wants to sow enmity

cS OF Oath yy Ut} OUI fae oy am,
cleat Sy Byltalh Soy

This shows the gradual tackling of problems as and when they arose.

The ‘wlama” are in agreement that the entire text of the Qur'an is
mutawatir, that is, its authenticity is proven by univenally accepted
testimony. It has been retained both in memory and as a written
record throughout the generations. Hence nothing less than tawirur
is accepted as evidence in establishing the authenticity of the variant
readings of the Qur'an. Thus the variant reading of some words in a
few ya, attributed to “Abd Allah ibn Mas‘6d, for example, which is
not established by tawdrur, is not a part of the Qur'lin. In the context
of the penance (kaffirah) for a false oath, for example, the standard
text provides this to be three days of fasting. But Ibn Mas‘Od’s version
has it as three consecutive days of fasting. Since the additional element
(ie. consecutive) in the relevant dyah in sira al-Ma'idab (5:92) is not
established by tawitur, it is not a part of the Qur'an and is, therefore,
of no effect." Similarly, ‘Abd Allah ibn Zubayr added the phrase ‘wa-
yasta'iniina bivAllah ‘ald ma asdbahum’ to the dyah in sOra Al ‘Imein
(32104) which accordingly read: ‘Let there arise from among you
2 group that invite others to do good work, enjoining what is
right and forbidding what is wrong [and seck help from God when
they are afflicted with sufferings]. They shall indeed be granted

Syl ogphy ptt Sp Ope Ul Su Sy

Opalall ps sli sly Sal oe Oy

22 PRINCIPLES OF ISLAMIC JURISPRUDENCE

This is not established by conclusive testimony (tausitur) either, and
it is therefore not part of the Qur’in, When “Umar ibn al-Khaytab
heard this, he asked: ‘Is it his [Ibn Zubayr’s| recitation of the text or
his interpretation?’ Some commentators maintain that it was an inter-
pretation. There were many other instances of variant readings in
different Arabic dialects. Seven such dialects are commonly known
to have existed and words were often read with different vowelling,
or declensions, that affected the grammatical position and sometimes
also the meaning of the text. The variant readings are sometimes
adopted as a basis of interpretation. Note, for example, the last word
in the ayah on the punishment of theft (al-Ma'idah, $:38) which
is ‘aydiyahumd’ (their hands) in the standard reading, but which
‘Abd Allsh ibn Mas‘dd read to be “aymanahuma’ (their right hands)
The ‘ulama’ and commentators have generally retained the first but
adopted the second only within the meaning of the first.” The Hanafls
maintain that the unproven text may be acted upon and used as
speculative evidence in the interpretation of the Qur'an because the
Companions are deemed to be upright and their readings should be
given credit. The Shifi'ls and Mialikis have held that since these
portions are claimed to be parts of the Qur'an and remain unproven,
they are rejected altogether.

During the lifetime of the Prophet, the text of the Qur'in was
preserved not only in memories, but also in inscriptions on such
available materials as flat stones, wood and bones, which would
explain why it could not have been compiled in a bound volume.
Initially, the first Caliph, Abd Bakr, collected the Qur'an soon after
the battle of Yamimah, which led to the death of at least seventy of
the memorisers of the Qur’in. Zayd ibn Thibis, the scribe of the
Prophet, was employed in the task of compiling the text, which he
accomplished between 11 and 14 AH. But several versions and readings
of this edition soon crept into use. Hence the third Caliph, ‘Uthman,
once again utilised the services of Zayd to verify the accuracy of the
text and compiled it in a single volume. Alll the remaining variations
were then destroyed. As a result, only one authentic text has remained
in use to this day."

The Qur'in was revealed in two distinct periods of the Prophet's
mission in Mecca and Medina respectively. The larger part of the
Qur'an, that is nineteen out of the total of thirty parts, was received
during the first twelve and a half years of the Prophet's residence in
Mecea. The remainder of the Qur'an was received after the Prophet's
migration to Medina over a period of just over nine and a half years."

The First Source of Sherfalr: the Qur’in 23

‘The Meccan part of the Qur'an laid down the basic pnnciples of law
and religion that were elaborated in Medina. This is the conclusion
al-Shitibl reached in al-Muwiifagat (III, 104) saying that a closer exam-
ination of the Medinan portions of the Qur'in reveals that they
generally supplement the basic guidelines that were revealed earlier
in Mecca.

With reference to the five essential values of Islam, that is, religion,
life, intellect, family and property, al-Shiibi wrote that all these were
in principle enunciated in the Meccan portions of the Qur'an. In
addition to the essentials of belief and monotheism, matters of worship,
and disputation with the unbelievers etc., the Meccan Qur'an also
contained legal rulings on the permitted and forbidden varieties of
food, the prohibition of murder and infanticide, safeguarding the
property of orphans, the prevention of injustice (ulm), giving due
measurement and weight in commercial transactions and a variety of
other rulings. Most of the references to bygone nations and prophets,
their experiences and the lenons they taught occur in the Meccan
part of the Qur'an, with the obvious purpose of strengthening the
resolve of the Prophet and his early Companions in the propagation
of the new faith. But the Medinan part of the Que’in also comprised
legal rules and regulated the various aspects of life in the new
environment of Medina, Since the Medinan period signified the
formation of the wnmah and the nascent Islamic state, the Qur’anic
emphasis shifted to principles regulating the political, legal, social and
economic life of the new community. During this period, Islam
expanded to other parts of Arabia, and the Qurinic response to the
need for rules to regulate matters of war and peace, the status and rights
of the conquered people, the organisation of the family and principles
of government feature prominently in the Medinan part of the
Qur'in.” The knowledge of the Meccan and the Medinan contents
ofthe Qur'an gives one an insight into the context and circumstances
in which the dyat were revealed; it is particularly relevant to the
understanding of the incidence of abrogation (naskh) in the Qur'an.
Distinguishing between the abrogating (al-ndsikh) and the abrogated
(al-mansiikh) portions of the text depends on determining the chrono~
Jogieal order in the revelation of the relevant dya. Similarly, most of
the general (‘dmm) rulings of the text have been qualified either by
the text itself or by hadith. Thus the knowledge of the Meccan and
Medinan parts of the revelation facilitates a better understanding of
some of the characteristic features of the Qur’anic legislation,

‘A sOira is considered to be Meccan if its revelation began in Mecca,

24 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The First Source of Shari‘ah: the Qur'an 25

even if it contained dyat that were later revealed in Medina, The

Quran consists of eighty-five Meccan and twenty-nine Medinan
shras. The differences of content and style that are observed in each
are reflective of the prevailing circumstances of each period, Since
Muslims were in the minority in Mecea, the Meccan dyat may thus

be especially meaningful to Muslims living in a dominantly non-
Muslim environment, whereas the Medinan dyit may take for
granted the presence of the sovereign authority of the Islamic state:
The Meccan sdras are generally short but rhythmical and intense in
their emotional appeal to the pagan Arabs, whereas the Medinan siiras
are detailed, and convey a sense of serenity that marks a difference of
style in the revelation of the Qur'an."

The distinction between the Meccan and Medinan parts of
the Qur'an is based on the information that is provided mainly by
the Companions and the following generation of the ‘successors’: the
Prophet himself has said nothing on the subject. The distinction is
also facilitated considerably by internal evidence in the Qur'an, such as
the themes themselves: dydr about warfare were, for example, revealed
only after the Hijrah, but references to Ab0 Lahab in sa 111 and to
the battle of Badr (Al-'Imrin, 3:123) indicate the Meccan origin of
the sOras in which they occur, Similarly the form of address is often
different in the two parts, The frequent address, ‘O you who believe’
and ‘O people of the Book’ indicates a Medinan origin, while "O
people’ or ‘O mankind’ are typically Meccan. There are nineteen
sOras in the Qur'dn that begin with abbreviated letters (al-mugagta' lt);
all of them are known to be Meccan except two, namely al-Bagarah
and Al ‘Imrin. All references to the mundfigin (hypocrites) are
Medinan and all sOras that contain a sajdah, that is, an order to pros-
trate, are Meccan. The distinction between the Meccan and Medinan
portions of the text is on the whole a well-established feature of the
Qur'in, which is normally indicated next to the title of each sOra,
and the best evidence of such distinction is internal evidence in the
Qur'an itself.

With regard to distinguishing the Meccan from the Medinan
portions of the Qur'sn, the ‘wlama” have applied three different criteria.
(1) The time of revelation, meaning that the part of the Qur'in which
was revealed prior to the Prophet's migration to Medina is classified
as Meccan, and the remaining part, which was revealed after this
occasion, is identified as Medinan regardless of the locality in which
it was received. In this way the dyat which were actually revealed in
Mecca after the Year of Victory (‘am al-fath) or during the Farewell

Pilgrimage (hajj al-wid’) are accounted as Medinan. This is consid-
ered to be the most preferred of the three methods under discussion
(2) The place of revelation, which means that all the ayat that were
revealed while the Prophet was in Mecca, or its neighbouring areas,
such as Ming, ‘Arafah and Hudaybiyyah, are classified as Meccan, and
yt that were actually revealed in Medina or its surrounding areas,
such as Ubud and Qua’, are classified as Medinan. This criterion is,
however, not conclusive in that it leaves out the dyat that were
received while the Prophet was travelling to places such as Jerusalem
or Tabuk. (3) The nature of the subject-matter and audience, which
means that all the parts of the Qur'an that are addressed to the people
of Mecca are classified as Meccan and those which are addressed to
the people of Medina are classified as Medinan. In this way all the
passages which begin with phrases such as ‘O mankind’ or 'O people’
are Meccan and those which open with phrases such as ‘O believers’
are typically Medinan."?

Meccan dyit are also recognised by the occurrence therein of the
phrase, yd hint Adama (O Children of Adam), narratives and infor-
mation about previous prophets, and the occurrence of the word kalli
(not at all, certainly not) indicating argumentation with disbelievers
‘on matters of belief in God, the prophethood of Mubammad, belief
in the Hereafter, moral teachings, denunciation of acts of oppression
and injustice, and the occurrence in the text of oath-like expressions
(aged), Medinan passages are distinguished by references to the people
of scripture, permission for jihad, references to the muhdjiriin and the
‘angar (Emigrants and Helpers) and legislation on a variety of themes.

In the sense that legal material occupies only a small portion of the
bulk of its text, the Qur'an is not a legal or a constitutional document,
The Qur'an calls itself hud, or guidance, not a code of law. Just as
it describes itself by such other names as al-Kitdb, al-Wahy, al-Dhiler,
al-Furgan, al-Qusas and al-Tanzil, that is, the Book, the Revelation,
the Reminder, the Distinguisher, the Narratives and the Descended
respectively. The name Qur’in and its meaning oecur in the follow=
ing passage: ‘It is for Us to collect and promulgate it. When We have
recited it, then follow its recital.’ (al-Qiyimah, 75:17-18).

die J eats ob J 13 wile Jy eum Lie Of

Out of over 6,300 ayit, less than one-tenth relate to law and
jurisprodence, while the remainder are largely concemed with matters
‘of beliefand morality, the five pillars of the faith and a variety of other

26 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The First Source of Shariah: the Qur’in 27

themes, Its ideas of economic and social justice, including its legal
contents, are on the whole subsidiary to its religious call

The legal or practical contents of the Que’an (al-alkaim al-‘amaliyyal)
constitute the basis of what is known as figh al-Qur'dn, or the corpus
juris of the Qur’in. There are two types of practical rules in the Qur’'n:
those pertaining to ‘ibddat and those pertaining to mu amalat. An dyah
is classified as one of the dyar al-abldm (legal verses) if it contains a
ruling or hukm, even if this occurs in a non-legal context. Those who
have applied this method, such as the Maliki jurist Ibn al~'Arabi, were
able to identify a large number of legal dydr, Ibn al~‘Arabi thus
identified over eight-hundred such dyat in the Holy Book. But those
who classified a legal dyah only when it occurred in a legal context have
identified a smaller number of dyat as falling into the legal category.
Among the numerous Qur’dnic conunentaries, three are well-known
to be comprehensive on aya al-ahkim. These are Ahmad ibn ‘All
al-Raz al-Jassls (d. 370 att), Abkdm al-Que’dn, Aba Bakr Mubammad
ibn ‘Abd Allah al~‘Arabt (4. $43 Am), Abs al-Que' dnt, and Aba ‘Abd
Allah Mubamumad ibn Abmad al-Qurtubl (d. 671 AH), alsJam@ lisa

Abkim, Unlike the former two, which are not free of scholastic
bias in favour of the Hanaft and Maliki schools respectively, the last
one is generally free of scholastic bias despite the fact that al-Quetubs
was a follower of the Malikt school,

The dyat al-abkim are of three types: those which relate to belief,
known as abkam i‘tigadiyyah, those which relate to morality, known
as abkim khulgiyyah, and the practical legal rules, known as abd
amaliyyah. This last is then sub-divided into the two main categories
of ‘ibidat and mu‘dmalat,

There are close to 350 legal aya in the Qur'dn, most of which were
revealed in response to problems that were actually encountered.
Some were revealed with the aim of repealing objectionable customs,
such as infanticide, usury, gambling and unlimited polygamy. Others
Jaid down penalties with which to enforce the reforms that the Qur’in
had introduced. But on the whole, the Qur’in confirmed and upheld
the existing customs and institutions of Arab society and only intro~
duced changes that were deemed necessary." There are an estimated
140 dyat in the Qur'an on devotional matters such as salah, legal alms
(zakdh), siyiim (fasting), the Pilgrimage of hajj, jihad, charities and the
taking of oaths and penances (kaffardt). Another seventy dydt are
devoted to marriage, divorce, the waiting period of ‘iddah, revocation
(rif'ah), dower, maintenance, custody of children, fosterage, paternity,
inheritance and bequest. Rules conceming civil and commercial

transactions such as sale, lease, loan and mortgage constitute the
subject of another seventy ayat, There are about thirty ayiit on crimes
and penalties stich as murder, highway robbery (hirdhah), adultery and
false accusation (gadh). Another thirty dyat speak of justice, equality,
evidence, consultation, and the rights and obligations of citizens,
About twenty-five dyit relace to international relations regulating
relations between Muslims and non-Muslims. There are about ten dydr
relating to economic matters regulating relations between the poor
and the rich, workers’ rights and so on.” It will be noted, however
that the jurists and commentators are not in agreement over these
figures, as calculations of this nature tend to differ according to one's
understanding of, and approach to, the contents of the Qur'an."

I. Characteristics of Qur’inic Legislation

We have already described the phenomenon of graduality (canjim) in
Qur'Snic legislation, its division into Meccan and Medinan, and also
the fact that the Qur'in has been revealed entirely in pure Arabic, In
the discussion below, I have also included ratiocination (ta'li!) among
the characteristic features of Qur’Anic legislation, despite the fact that
the Qur'in specifies the effective cause or the rationale of only some
of its laws. The Qur'an is nevertheless quite expressive of the purpose,
reason, objective, benefit, reward and advantage of its injunctions.
Since the Qur’in addresses the conscience of the individual with a
view to penuuading and convincing him of the truth and the divine
origin of its message, it is often combined with allusions to the bene
fit that may accrue from the observance of its commands or the harm
that is prevented by its prohibitions, This is a feature of the Qur'anic
legislation that is closely associated with ratiocination (tall) and
provides the mujahid with a basis on which to conduct further
enquiry into ta'lil. However, of all the characteristic features of
Qur'inie legislation, its division into gaff and zannt is perhaps the
most significant and far-reaching, as it relates to almost any aspect of
enquiry into Que’anic legislation, I shall therefore take up this subject
first.

11 The Definitive (Qaf‘?) and the Speculative (Zanni)

A ruling of the Qur'in may be conveyed in a text which is either
unequivocal and clear, or itv language that is open to different inter-
pretations. A definitive text is one which is clear and specific; it has

28 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Fimst Source of Sharf‘ah: the Qur'an 29

only one meaning and admits no other interpretations. An example
of this is the text on the entitlement of the husband in the estate of
his deceased wife: ‘In what your wives leave, your share is a half, if

they leave no child’ (al-Nisa’, 4:12)
Sy oh Sab Ol pSorlyif dF Gea py

Other examples are:
them ach a hundred stripes’

jeter Mle Legs domly JS piled cally aul pt

The adulterer, whether a man or a woman, flog
(al-Nar, 24:2)

and “Those who accuse chaste women of adultery and fail to bring four
witnesses (to prove it}, fog them eighty stripes’ (al-Nar, 24:4)

eligd dah igh 2 ¢ cladl Opry opilly
oe UU ee glen

The quantitative aspects of these rulings, namely one half, one
hundred and eighty, are self-evident and therefore not open to intef-
pretation. The rulings of the Qur'an on the essentials of the faith such
as jalah and fasting, the specified shares in inheritance and the
prescribed penalties, are all gaff: their validity may not be disputed
by anyone; everyone is bound to follow them; and they are not open
to (oid

The speculative aydt of the Qur'in are, on the other hand, open to
interpretation and ijtihdd, The best interpretation is that which can be
obtained from the Qur'in itself, that is, by looking at the Qur'an as
a whole and finding the necessary elaboration elsewhere in a similar
or even a different context. The Sunnah is another source that supple-
ments the Qur'in and interprets its rulings. When the necessary
interpretation can be found in an authentic hadith, it becomes an
integral part of the Qur'an and both together carry a binding force.
Next in this order come the Companions, who are particularly well»
qualified to interpret the Qur’Sn in the light of their close familianicy
with its text, the surrounding circumstances, and the teachings of the
Prophet.

An example of the zai in the Qur'an is the text that rea:
‘Prohibited to you are your mothers and your daughters’ (al-Nisi’,
4:23),

py Sill Sle on >

This text is definitive in regard to the prohibition of marriage with
one’s mother and daughter and there is no disagreement on this point
However, the word bandtukum (‘your daughters’) could be taken
literally, which would be a female child bom to a person either
through marriage or through zind, or for its juridical meaning. In the
latter sense “bandtukum’ can only mean a legitimate daughter

The jurists are in disagreement about which of these meanings
should be read into the text. The Hanafls have upheld the first of the
two meanings and have ruled on the prohibition of marriage to one's
illegitimate daughter, whereas the Shifi‘ls have upheld the second
According to this interpretation, marriage with one’s illegitimate
daughter is not forbidden as the text only refers to a daughter through
marriage. It would follow from this that the illegitimate daughter has
no right to inheritance, and the rules of guardianship and custody do
not apply to her.”

Ina similar vein, the ‘wlamd’ have differed on the definition of futile,
as opposed to deliberate, oaths which occur in sGra al-Mi'idah (4:89)
‘God will not call you to account for what is futile in your oaths, but
He will call you to account for your deliberate oaths.”

OLY Aude Le pT p S05 SUSY gL St Tiny Y
The text then continues to spell out the expiation, or kuffirah, for
deliberate oaths, which consists of either feeding ten hungry persons
who are in need, or setting a slave free, or fasting for three days.
According to the Hanafls, a futile oath is one which is taken on the
truth of something that is suspected to be true but the opposite
‘emerges to be the case. The majority have, on the other hand, held it
to mean taking an oath which is not intended, that is, when taken in
jest without any intention. Similar differences have arisen concerning
the precise definition of what may be considered as a deliberate oath
(yamin al-mu'aqgadah).?® There is also disagreement about whether
the three days of fasting should be consecutive or could be three
separate days. Hence the text of this dyah, although definitive on the
basic requirement of kaffarah for futile oaths, is speculative in regard to
the precise terms of the kaffinah and the manner of its implementation.

To give another example of ganni in the Qur'an, we may refer to
the phrase yunfaw min al-ard ("co be banished from the earth’) which

30 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The First Source of Sharial: the Qur’in 31

‘occurs in stra al-Ma’idah (5:33). The phrase spells out the penalty for
highway robbery (hirdbah) or, according to an alternative but similar
interpretation, for waging war on the community and its legitimate
leadership. Banishment (nafy) in this dyah can mean exile from the
place where the offence is committed in the first place. This is, in fact,
of the phrase, and the one which has been adopted
But the Hanaft jurists maintain that

the obvious meani
by the majority of the ‘wlam:
the phrase means imprisonment, not exile, According to the Hanatis,
a literal approach to the interpretation of this phrase does not prove
to be satisfactory’ if one is to be literal, then how can one be banished
from the face of the earth by any method but death? Nafy, of exile,
on the other hand, is a penalty other than killing. Furthermore, if the
offender is to be banished from one place to another within the Muslim
territories, the harm is not likely to be prevented as he may commit
further offences. The Hanafis have further argued that banishing a
Muslim outside the territory of Islam is not legally permissible. The
only proper meaning of the phrase that would achieve the Shart‘ah
purpose behind the penalty is, therefore, imprisonment.

And lastly, the whole dyah of mubdrabah in which the phrase yunfaw
min aleard occurs is open to divergent interpretations. The dyah in
question reads:

The punishinent of those who wage war against God and Hin Messenger and strtee
to make mischief in the land ia that they should be kill
hands and their feet should be cut off on opposite sides, ord

or crucied oF thetr

xy should be banished

reser’
PIN Opens Spey Bi Oy LE cpl cle UH
eels eget chats sf iyLay Filey of lala
225) Nit of Be oy

In this pastage, confusion arises from the combination of phrases which
contain different penalties for hiribah. This is mainly due to the use
of the article aw, meaning ‘or’, between the three phrases that provide
three different penalties for the offence in question. It is thus not
known for certain which of the three penalties are to be applied to
the offender, that is, the muharib, The majority view is that the
mubiarib is liable to execution when he actually robs and kills his victim,
but if he only robs him, the offender is liable to the mutilation of his

hands. And finally, if there is no killing involved and no robbery, then
the penalty is banishment. In the more intense cases where the
offender terrorises, kills and robs his victim, the former is to be killed
and crucified, According to an altemative juristic opinion, it is for
the ruler to determine one or the other, or a combination of these
penalties, in individual cases

A Qur'inic injunction may simultancously possess a definitive and
a speculative meaning, in which case each of the two meanings will
convey a ruling independently of the other. An example of this is the
injunction concerning the requirement of ablution fot prayers which
reads in part ‘and wipe your heads’ (al-Mi'idah, $26)

rad Lely
This text is definitive on the requirement of wiping (mash) of the head
in wudi’, but since it does not specify the precise area of the head to
be wiped, it is speculative in regard to this point. Hence we find that
the jurists are unanimous in regard to the first, but have differed in
regard to the second aspect of this injunction.”

There are sometime instances where the scope of disagreement
about the interpretation of the Qur'an is fairly extensive. Mahmad
Shaltot, for example, underlines this point by noting that at times
seven or cight different juristic conclusions have been arrived at on
one and the same issue. And he goes on to say that not all of these
views can be said to be part of the religion, nor could they be legally
binding. These are ijtihdd! opinions; ijtihad is not only permissible but
is encouraged. For the Shari'ah does not restrict the liberty of the
individual to investigate and express an opinion. They may be right
or they may be wrong, and in either case, the diversity of opinion
offers the political authority a range of choice from which to select
the view it deems to be most beneficial to the community. When the
niler authorises a particular interpretation of the Qur'an and enacts it
into law, it becomes obligatory for everyone to follow only the
authorised version.”

The ‘lama are in agreement that the specific (khdys) of the Que‘sn
{and of Sunnah) is definitive, but they are in disagreement as to
whether the general (‘dmm) is definitive or speculative. The Hanatls
maintain that the ‘amm is definitive and binding but the Malikis,
Shafi'ls and Hanbalis hold that the ‘amm by itself is speculative and
‘open to qualification and specification. We need not, at this point, go
into the details of the ‘dmm and the kiss as we shall have occasion

32 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The First Source of Shartah: the Qur'in 33

to retum to the subject later. Suffice it here to explain how the ‘amm
and khags may be related to gaf't and zanné
First we may highlight the zanni content of the ‘damm by referring
to the Qur'nic ruling which states: ‘Forbidden to you [in marriage]
15, your daughters, your sisters, your father’s sisters
a, 4:23),

are your mot

and your mother’s sisters’ (al-Ni
piney Sa pthy pSakiny Sigal Sake cn
pSV

This is a general ruling in that mothers, daughters, sisters, etc, are all
mm as they include, in the case of ‘mother’, not only the real mother
but also the step-mother, foster mother and even the grandmother
Similarly, ‘daughters’ can include real daughters, step-daughters, grand-
daughters and even illegitimate daughters. The application of these
terms to all of their various meanings is qaf‘f according to the Hanatls,
but is zann! according to the majonity of ‘lama’. Whenever the zanni
of the Qur'an is explained and clarified by the Qur'an itself or by the
Sunnah, it may become gaf, in which case the clarification becomes
an integral part of the original ruling. On the subject of prohibited
degrees in marriage, there is ample evidence both in the Qur’in and
the Sunmah to specify and elaborate the ‘dmm of the Qur'in on this
subject. Similarly, when the Qur'an of the Sunnah specifies a general
ruling of the Qur'in, the part which is so specified becomes qa‘

To give another example of the ‘amm which can be clearly seen in
its capacity as zannf we refer to the Qur'3nic proclamation that ‘God
has permitted sale and prohibited usury’ (al-Bagarah, 2:27),

US py cell dil Joly

This is a general ruling in the sense that sale, that is any sale, is made
lawful, But there are certain varieties of sale which are specifically
forbidden by the Sunnah. Consequently, the ‘amm of this dyah is
specified by the Sunnah to the extent that some varieties of sale, such
as the sale of unripe fruit on a tree, or a sale that involve uncertainty
or risk-taking (gharaf) were forbidden and therefore excluded from
the scope of this dyah. The ‘wlama’ are all in agreement to the effect
that once the ‘anim has been specified even in a narrow and limited
sense, the part which still remains unspecified is reduced to zanni and
will be treated as such,

Broadly speaking, the khdgy is definitive. When, for example, the
Qur'an (al-Nor, 24:4) prescribes the punishment of eighty lashes for
slanderous accusation (gadhf), the quantitative aspect of this punishment
is specific (khass) and not suscepuble to any speculation. But then we
find that the same passage (al-Nar, 24:4~s) prescribes a supplementary
penalty for the slanderous accuser (g8dhif) where it reads: ‘Never accept
their testimony, for they are evildoers (fasigin], except for those who
repent afterwards and make amends.

AY] Ope pw cbt gly Lal daly ab I La Vy
Vppabol y AUS ay o> Iti

This text is clear and definitive on the point that the gadhif is to be
disqualified as a witness, but then an element of doubt is introduced
by the latter portion of the text which tends to render ambiguous the
precise scope of its application. Having enacted both the principal
and the supplementary penalties for slanderous accusers and fAsigin it
becomes questionable whether the gadhif should qualify as a witness
after repentance. Does the text under discussion mean that the con-
cession is only to be extended to the fasigin and not necessarily
to slanderous accusers? If the answer is in the affirmative, then once
the gadhif is convicted of the offence, no amount of repentance will
qualify him as an upright witness again. The confusion is due to
uncertainty in the meaning of the pronoun alladhina (i.e. ‘those’) which
is not known to refer to all or only part of the preceding elements in
the text. The Hanafis disqualify the qadhif permanently from being a
witness, whereas the Shifi'ls would admit him as a witness after
repentance. This example also serves to show that it is not always self=
evident whether a text is qaf‘I or zanni as this too may be open to
interpretation, The main point of citing this example is to show that
although the khass is qafi, an aspect of it may be zanni in a way that
might affect the definitive character of the khags as a whole.
Although in principle the khays is qaf'f and, as such, is not open to
speculative interpretation, there may be exceptions to this general
rule. For example, the penance (kaffirah) of a false oath according to
a textual ruling of the Qur'an (al-Ma'idah, 5:89) is of three types, one
of which is to feed ten poor persons. This is a specific ruling in the
sense that “ten poor persons’ has only one meaning. But even so, the
Hanafis have given this text an alternative interpretation, which is
that instead of feeding ten poor persons, one such person may be fed

34 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The First Source of Shariah; the Qur'an 35

ten times. The majority of ‘wlamd’, however, do not agree with the
Hanatls on this point. Be that as it may, this example will serve to
show that the scope of ijtihdd is not always confined to the ‘am but
that even the khdss and definitive rulings may require elaboration
which might be based on speculative reasoning.

Furthermore, the khags of the Qur'an normally oceurs in the form
of a command ot a prohibition which, as discussed below in a separate
chapter, can cither be gaf‘t or zanni, The zanni component of a
command or a prohibition is readily identified by the fact that a
command in the Qur’ln may amount either to wijib or to mandilb or
even to a mere mubah, Similarly, it is pot always certain whether a
prohibition in the Que’An amounts to a total ban (tahrim) or to a mere
abomination (kardhah)

The absolute (muplag) and the qualified (mugayyad) are also classified
as the sub-varieties of khdys. But these too can be related to the qar'f=
anni division in at least two ways. Firstly, the absolute, somewhat
like the ‘dmm, is speculative in regard to the precise scope of its
application, Secondly, the qualification of the absolute, the grounds
on which it is qualified and the nature of the relationship between
the qualified and the qualifier are not always a matter of cerain
knowledge. The absolute in the Que’dn is sometimes qualified on
speculative grounds, which is why the jurists are not in agreement
about the various aspects of qualifying the mujlaj. Purther detail on
the subject of mutlag and mugayyad and juristic disagreements about
its various aspects can be found in a separate chapter below. Suffice
it here to give an illustration: there are two separate rulings on the
subject of witnesses in the Qur’in, one of which is absolute and the
other qualified in regard to the attributes of the witness. First it is
stated with regard to the transaction of sale to “bring witnesses when
you conclude a sale’ (al-Bagarah, 2:282)

pls lags

In this dyah, the witness is not qualified in any way whatsoever, But
elsewhere we find in reference to the subject of revocation in divorce
(ri'ah), the command to ‘bring two just witnesses’ (al-Taliq, 65:2).

pS Se 533 Inet

The 'wlama’ have on the whole related these two dpat to one another
and the conclusion drawn is that the qualified terms of the second

yah must also be applied to the first, which would mean that witnesses
must be upright and just whether it be a case of a commercial trans-
action or of revocation in divorce. This is the settled law, but to relate
this to our discussion on the qaf'i and the ganni, it will be noted that
determining the precise scope of the first dyah is open to speculation.
Does the requirement of witnesses apply only to sale of to all commer-
cial transactions? To enter into a detailed discussion on this point
might seem out of place in the face of the fact that, notwithstanding
the clear terms of the Qur’inic injunction, the rules of figh as devel-
oped by the majonity of ‘wlama’, with the exception of the Zahiris,
do not require any witnesses either in sale or in the revocation of
divorce, The ‘wlama’ have, of course, found reasons in support of
their rulings both from within and ouside the Qur’in, But even the
bare facts we have discussed so far are enough to show that the mutlag
and mugayyad are susceptible to speculative reasoning, But to discuss
the foregoing example a litle further, it will be noted that the
juxtaposition of the ewo ayat, and the conclusion that the one is
‘qualified by the other, is to a large extent based on speculative reason-
ing. And then the qualified terms of the second of the two dyat may
be taken a step further, and the question is bound to be raised, as
indeed it has been, as to the precise meaning of a just witness. The

wlama’ of the various schools have differed on the attribute of ‘adalah
ina witness and their conclusions are based largely on speculative
ijtihad.

We need not perhaps discuss in detail the point that the binary
division of wards into the literal (hagigf) and the metaphorical (majaz/),
which we shall elsewhere elaborate on, can also be related to the gars
and anni. Although relying on the literal meaning of a word is the
nom and a requirement of certainty in the enforcement of a legal
text, it may be necessary at times to depart from the literal in favour
‘of the metaphorical meaning of a word, To give an example, salaq
fiterally means release or setting free but, as a technical term, it has
acquired a specific meaning, and it is the metaphorical meaning of
talag which is normally applied. The ‘wlama’ have identified a large
variety of grounds on which the hagigi and the maidzt can be related
to one another, The majazi is to a lange extent speculative and unreal.
Some ‘wlama’ have even equated the majizi with falschood and, as
such, have held that it has no place in the Qur'dn, It is thus suggested
that the majazt is not to be relied upon in interpreting the practical
injunctions of the Qus’in. Be this as it may, the point is clear that
speculative reasoning has a wide scope in determining the meaning

36 PRINCIPLES OF ISLAMIC JURISPRUDENCE

and application of hagiqi and majzt in the Qur’Sn, and indeed in any
other source of Shari'ah.

Furthermore, the ‘wlama’ have deduced the rules of Shariah not
only from the explicit words of the Qur'in, which is referred to as
the mantilg, but also from the implicit meanings of the text through
inference and logical construction, which is referred to as the implied

meaning, or mafhim. Once again, this subject has been discussed in
a separate chapter under al-daldlat, that is, textual implications. The
only purpose of referring to this subject here is to point out that the
deduction of the rules of Shariah by way of inference from the implied
meaning, of a text amounts to speculative reasoning and ijtihad.
Naturally, not all the abkdm deduced in this way can be classified as
zanni, The implied meaning of a text can often command the same
degree of authority as the explicit ruling of the same text. Having ssid
this, however, to extend, for example, the requirement of expiation
(kaffirah) for unintentional killing — which is releasing a slave, of
feeding sixty poor persons, or fasting for two months = to the case of
intentional killing on the analysis that the purpose of kaffiruh is
compensation for a sin and that this is true of all types of homicide,
is basically no more than speculative ijtihad. This is the implied mean:
ing of the text in sra al-Nist’, 4:92, which is explicit on the kaffirah
for unintentional killing. But the implied meaning of this text does
not command the same degree of certainty as the clear words thereof,
which is why the ‘ulamd? are not in agreement on it

In the discussion of the gay‘f and zannf, the Qur’in and Sunnah are
seen as complementary and integral to one another, the reason for
this being that the speculative of the Qur’in can be made definitive by
the Sunnah and vice versa, The ganni of the Qur'in may be elevated
into qar‘f by means of corroborative evidence in the Qur’in itself or
in the Sunnah, Similarly, the zannt of the Sunnah may be elevated
into qar'T by means of corroborative evidence in the Sunnah itself or
in the Qur'dn. And then the zannt of both the Qur'an and Sunnah
may be elevated into gaf't by means of a conclusive ijmd’, especially
the ijma of the Companions.

As stated above, a speculative indication in the text of the Qur'an
or hadith may be supported by a definitive evidence in either, in which
case it is as valid as one which was definitive in the first place. To ilfus-
trate this, all the solitary (ahdd) hadith which elaborate the definitive
Qur'inic prohibition of usury (riba) in sOra al-Bagarah (2:275) are
speculative by virtue of being ahad. But since their substance is
supported by the definitive text of the Qur'an, they become definitive

The First Source of Shariah: the Qus’in 37

despite any doubt that may exist in respect of their authenticity. Thus
as a general nile, all solitary hadith whose authenticity is open to
speculation are elevated to the rank of gaff if they can be substantiated
by clear evidence in the Qur'an.** However, if the zanni cannot be so
substantiated by the qaf', it is not binding unless it can be validated by
some evidence that may lead to one of the following two possibilities.
Firstly, the case where the zanni is found to be in conflict with a qay'T
of the Qur'in, in which case it must be rejected. To illustrate this, it
is reported that the widow of the Prophet, ‘A’isha, rejected the
alleged hadith that the soul of the deceased is tortured by the weep-
ing of his relatives over his death,* the reason being that this was
contrary to the definitive text of the Qur'an (al-An"im, 6:164) which
states that ‘no soul may be burdened with the burden of another soul!"

st oj b39 9 Vs

The second case is where the speculative indication is such that it
cannot be related to definitive evidence in any way. The ‘ulama” have
differed on this; some would advise suspension while others would
apply the presumption of permissibility (ibdhah), but the best view is
that the matter is open to ijtihid.”*

‘The gaff of the Qur'an is an integral part of the dogma, and anyone
who rejects or denies its validity automatically renounces Islam. But
denying a particular interpretation of the zanni does not amount to
transgression. The mujiahid is entitled to give it an interpretation, and
so is the ruler, who may select one of the various interpretations for
purposes of enforcement.

1.2 Brevity and Detail (al-Ijmal wa’l-Tafsil)

By far the larger part of Qur’nic legislation consists of an enunciation
of general principles, although in certain areas, the Qur'in also provides
specific details. Being the principal source of the Sharah, the Qur'an
lays down general guidelines on almost every major topic of Islamic
law. In commenting on this point, Abd Zahrah concurs with Ibn
Hazm’s assessment that ‘every single chapter of figh finds its origin in
the Qur'in, which is then explained and elaborated by the Sunnah’.
On a similar note, al-Shitibi makes the following observation:
experience shows that every ‘alim who has resorted to the Qur'dn in
search of the solution to a problem has found in the Qur’sn a principle
that has provided him with some guidance on the subject.”

38 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The First Source of Shariah: the Qur'in 39

jected nothing in

T
the Book’ (al

ation that “We have

quoted de:
An‘am, 6:38)

oe OS og Lbs

=

is held to mean that the m'dis al

skim, that is, the general principles
According
the reference here is to religion, on which the

of law and religion, are treated exhaustively in the Qur'in.”
to another view
Qur'in provides complete guidance, and this is confirmed in another
yah as follows: "Today I have perfected for you your religion and
completed my favour upon you and chosen Islam as your religion’
(al-Ma'idah, $:3).

gee Se atl Sao ST eLSt eh
ya pe SS edeyy

That the Qur'dn is mainly concemed with general principles is bome
out by the fact that its contents require a great deal of elaboration,
which is often provided, although not exhaustively, by the Sunnah,
To give an example, the following Que’Anic dyak provides the textual
authority for all the material sources of the Sharfah, namely the
Qur'an, the Sunnah, consensus and analogy. The dyah reads: ‘O you
who believe, obey God and obey the Messenger, and those of you
/¢ a dispute concerning any matter
refer it to God and to the Messenger’ (al-Nis’’, 4:59)

AM Sty Dred paely ih Nya geal call Gall
Jee dly dl Spo d eg QB pes Ob

‘Obey God! in this dyah refers to the Qur'an as the first source, ‘and
obey the Messenger’ refers to the Sunnah of the Prophet, ‘and those
of you who are in authority’ authorises the consensus of the ‘wlamd"
The last portion of the dyah (‘and if you have a dispute...") validates
giyds. For a dispute can only be referred to God and to the Messenger
by extending the rulings of the Qur’in and Sunnah through analogy
to similar cases. In this sense one might say that the whole body of
gil al-figh is a commentary on this single Qur'inic dyah." Al-Shiibi

who are in authority; and if you bi

further observes that wherever the Qur’in provides specific details, it
is related to the exposition and better understanding of its general

principles.” Most of the legal contents of the Qur'in consist of
general rules, although it contains specific injunctions on a number
of topics. Broadly speaking, the Qur’in is specific on matters that are
deemed to be unchangeable, but in matters that are liable to change,
it merely lays down general guideli

Qur’inic legislation is generally detailed on devotional matters and
subjects that have a devotional (ta' abbudf) aspect, such as matrimonial
law and inheritance. These are deemed to be permanent and the
rulings so enacted are followed primarily as a matter of devotion and
submission to the law of God. As for the laws of the Qur’dn on civil
transactions or mu‘dmaldt, these are generally confined to an exposi-
tion of the broad and general principles, and they remain open to
interpretation and ijtihad.”

Qur'dnic legislation on civil, economic, constitutional and inter-
national affairs is, on the whole, confined to an exposition of the
general principles and objectives of the law. With regard to civil
transactions, for example, the nujdy of the Qur'an on the fulfilment
of contracts, the legality of sale, the prohibition of usury, respect for
the property of others, the documentation of loans and other forms
of deferred payments are all concemed with general principles. Thus
in the area of contracts, Qur'Snic legislation is confined to the bare
minimum of detail. Of the two dyt on the subject of contracts, one
is in the form of a command and the other in the form of a question
as follows: ‘O you who believe, fulfil your undertakings’ (al-Ms'idah,
$1)

dylally byb gl Lyte coll Ul &

and *O you who believe, why do you say things which you do not
carry through?” (al-Saff, 61:2)

Sglads Ve Oa Lyle cell al

The substance of these dyat has been confirmed in two other short
passages as follows: “And fulfil the promise; surely the promise will
be enquired into”

Vt OF agall Y} gall tydyly

and “O you who believe, fulfil your undertakings’ (al-Ma"idah,
$:4).

40 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The First Source of Shariah: the Qur’in 41

ayially Lag Lele coll lel &

4:58) the Qur'an stresses the fulfilment

In yet anothe

dyah (al-Nisi
‘God commands you to

atment:

of trust and the principle of fair ¢

tum over trusts to whom they belong and when you judge among

people, judge with justice
i pieSe likly Ula J] LLY byog of pF pb ait of
Jad 1yaSF of ptt

Contracts must not, therefore, overrule the principles of morality and
justice, and the faithful fulfilment of trusts. In the area of civil trans-
actions and property, the believers are enjoined to “devour not the
properties of one another unlawfully, but let there be lawful trade by
mutual consent’ (al-Nist’, 4:29)

JH Ser Sel 1S Y Lye call al
Se A ot 56 0, of ¥1

Elsewhere we read in sea al-Bagarah (2:27) that ‘God has permitted
sale and prohibited usury’

UN ems eat dl Joly

The detailed varieties of lawful trade, the forms of unlawful inter

ference with the property of others, and the varieties of usurious
transactions, are matters on which the Qur’dn has not elaborated.
Some of these have been explained and elaborated by the Sunnah. As
for the rest, it is for the scholars and che mujtahidin of every age to
specify them in the light of the general principles of the Sharl"al and
the needs and interests of the people.

In the sphere of crimes and penalties, Quranic legislation is specific
with regard to only five offences, namely murder, theft, highway
robbery, zind and slanderous accusations. As for the rest, the Qur'an
authonses the community and those who are in charge of their affairs
(ie. the iia al-am?) to determine them in the light of the general
Principles of Shar ah and the prevailing conditions of society. Once
again the Quran lays down the broad principles of penal law when

it states that “the punishment of an evil is an evil like it’ (al-Shori,
42:49)

Ups ate dtm el jory

and ‘when you decide to punish, punish in proportion to the offence
committed against you' (al-Nabl, 16:126)

Ae page Le Be I pdlad gadle Oly

In the area of intemational relations, the Qur'an lays down rules
that regulate war with the unbelievers and expounds the circumstances
in which their property may be possessed in the form of booty. But
the general principle on which relations between Muslims and non-
Muslims are to be regulated is stated in the following passage

God does not fo

you w act considerstely towards hone who have
fought you over re from
you} tw act fairly towards them. God loves the f

10 be friendly with the om

nur homes, nor [dees he forbid

srunded. He only forbids you
who have fought you over |your} relygon and evicted
you from your hoes and have abetted others in your evicnon. Those who
befriend them are wronypsioers (aleMumiabinah, 60:8-9)

by cell Dp sbt d call ge a SY Y

Of pte Needy png OF pS bo oy pT eH
PSM pl ye it SU UY cake als 4
A Maley Se ee Sealy wil g
OU pe ISG phe cy pal y Of SL]

Similarly, the Qur’inic commandments to do justice are confined to
general guidelines and no details are provided regarding the duties of
the judge or the manner in which testimony should be given.”* On
the principles of goverment, such as consultation, equality and the
rights of citizens, the Qur’in does not provide any details. The
general principles are laid down, and it is for the community, the
‘ulama’ and leaders to organise their government in the light of the
changing conditions of society.”* The Qur'an itself warns the believers

42. PRINCIPLES OF ISLAMIC JURISPRUDENCE

against seeking the regulation of everything by the express terms of
divine revelation, as this is likely to lead to rigidity and cumbersome
restrictions: ‘O you believers, do not keep asking about things which,
if they were expounded to you, would become troublesome for you"

aah

pS $s pS a O} cloth yo 1 SLs Y bead cuit! Wall
In this way, the Qur'in discourages the development of an over-
Besides, wh
meant to be devised, in accordance with the general objectives of the
Lawgiver, through mutual consultation and ijtihdd, A careful reading
of the Qur'an further reveals that on matters pertaining to belief, the
basic principles of morality, man’s relationship with his Creator, and
what are referred to as ghaybiyyat, that is transcendental matters that
are characteristically unchangeable, the Qut’in is clear and detailed,
as clarity and certainty are necessary requirements of belief. In the
area of ritual performances (‘ibdddf) such as salah, fasting and hajj, on
the other hand, although these too are meant to be unchangeable,
the Qur'an is nevertheless brief, and most of the necessary details have
been supplied by the Sunnah. An explanation for this is that ritual
performances are all of a practical, or ‘amalf, nature and require clear
instructions which are best provided through practical methods and
illustration. With regard to salah, legal alms (zuki/) and hajj, for
example, the Que’s nds the believers to ‘perform the
jalah and pay the zak’ (al-Bagarah, 2:43)

AS Bh gy all \paily

and states thar ‘pilgrimage to the House is a duty that God has
imposed on mankind’(Al ‘Imin, 3:97)

Dee aN EUbl oy Call am Ltt le hy

With regard to salah, the Prophet has ordered his followers to
‘perform salah the way you see me performing it’

« gtel gpa, LS Iyle

© Qur'in has left unregulated

regulated society

simply com

and regarding the haij he similarly instructed people to ‘take from me
the rituals of the hai’)?

The First Source of Shariah: the Qur'in 43

op SSenkin ge Np

The details of zakit, such as the quorum, the amount to be given and
its numerous other conditions, have been supplied by the Sunnah

The Qur'an also contains detailed rules on family matters, the
prohibited degrees of relationship in marriage, inheritance and specific
Punishments for certain crimes. These rules have a devotional (ta‘abbudi)
aspect and are part of the “ibidat. They are also associated with human
nature and regulate the manner in which man’s natural needs may be
fulfilled. The basic objectives of the law regarding these matters are
permanent, They are, however, matters that lead to disputes, The
Purpose of regulating them in detail is to prevent conflict among
people. The specitic rulings of the Qur'an in these areas also took into
consideration the prevalence of certain entrenched social customs of
Arabia, which were overruled and abolished, Qur'inic reforms
conceming the starus of women, and its rules on the just distribution
of property within the family could, in view of such customs, only
be effective if couched in clear and specific detail."

The Qur'in frequently provides general guidelines on matters of
law and religion, which are often specified by the Qur’in itself; other-
wise the Sunnah specifies the general in the Que’in and elaborates its
brief and apparently ambiguous provisions, By far the larger part of
Quranic legislation is conveyed in general terms which need to be
specified in relation to particular issues. This is partly why we find
that the study of the ‘dmm (general) and khdss (particular) acquires a
special significance in the extraction of substantive legal rules from the
gencral provisions of the Quran. Once again the fact that legislation
in the Qur'in mainly occurs in brief and general terms has to a large
extent determined the nature of the relationship between the Qur'an
and Sunnah, Since the general, the ambiguous and the difficult portions
of the Qur’in were in need of elaboration and takhets (specification),
the Prophet was expected to provide the necessary details and deer-
mine the particular focus of the general rulings of the Qur'tn. It was
due to these and other such factors that a unique relationship was
forged between the Sunnah and the Qur'an in that the two are often
integral to one another and inseparable. By specifying the general and
by clanfying the mujmal in the Qur'an, the Sunnah has undoubtedly
played 2 crucial role in the deyelopment of Shariah, It is the clear
and the specific (lehdss) in the Qur'an and Sunnah which provides the
core and kernel of the Shari'ah in the sense that no law can be said

ai unary
The » has made it
possible to relate them to almost any stage of development in the
socio-political life of the community, The Qur'in has noe specified

nd at has

take place, nor
d. These are all
PY as the vicogerent
¢ Community is at
which the principle of shin

tare of Qur'inac legalation, it may be stated here

The First Source of Shariah: the Qur’in 45

variety of forms which are often open to interpretation and ijtihad
The question of whether a particular injunction in the Qur'jn
amounts to 3 binding command or to a mete recommendation or
even permissibility cannot always be determined from the words and
sentences of its text. The subject of commands and prohibitions need
not be elaborated here as this is the theme of a separate chapter of this
work. It will suffice here to note the diversity of Qur'dnic language
on legislation. Broadly speaking, when God commands or praises
something, or recommends a certain form of conduct, or refers to the
positive quality of something, or when it is expressed that God loves
such-and-such, or when God identifies something as a cause of
bounty and reward, all such expressions are indicative of the legality
(mashri‘iyyah) of the conduct in question, which partakes of the
obligatory and commendable, If the language of the text is inclined on
the side of obligation (wwjé), such as when there is a definite demand
or a clear emphasis on doing something, the conduct in question is
obligatory (wijib), otherwise it is commendable (mandiib)

Similarly, when God explicitly declares something permissible (hala)
or grants a permission (idhn) in respect of doing something, ot when
it is said that there is ‘no blame’ or ‘no sin’ accrued from doing some.
thing, or when God denies the prohibition of something, or when
the believers are reminded of the bounty of God in respect of things
that are created for their benefit, all such expressions are indicative
of permissibility (ibahah) and the right to choose (takhyfr) in respect
of the conduct or the object in question.

Whenever God demands the avoidance of a certain conduct, or
when He denounces a certain act, or identifies it as a cause for punish
ment, or when a certain kind of conduct is cursed and regarded as the
work of Satan, or when its harmful effects are emphasised, or when
something is proclaimed unclean, a sin or a deviation (ithm, fisg) ~ all
such expressions are indicative of prohibition (tahrim) or abomination
(karahah). 1f the language is explicit and emphatic in regard to pro-
hibition, the conduct or object in question becomes harm, otherwise
it is reprehensible, or maknih. It is for the mujtahid to determine the
precise value of such injunctions in the light of both the language of
the text and the general objectives and principles of the Sharfah."’

This style of Qur’inic legislation, and the fact that it leaves oom
for flexibility in the evaluation of its injunctions, is once again in
harmony with the timeless validity of its laws. The Qur'an is not
specific on the precise value’of its injunctions, and it leaves open the
possibility that a command in the Qur’in may sometimes imply an

46 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The First Source of Sharfal: the Qur'in 47

The Qur'in

ries known as the five values (al-alykdm al-

obligation, a recommendation ot mere permissibility
does not employ the cat
kehamsah) which the fig
manuals, When an act is evalu
or wijib; when it is absolutely forbidden, it is eval

© attempted to specify in juristic
ted as obligatory, it is labelled fang
ated as harm.
The shades of values which occur between these two extremes are
primarily reli racter and provide a yardstick that can be
applied to any type of human conduct, But only the two extremes,
namely the wjib and hardm, incorporate legal commands and pro-
hibitions. The rest are largely non-legal and non-justiciable in a court
of law. The Qur'an thus leaves open the possibility, although not
without reservations, of enacting into he
classified by the fugaha’ of one age as merely reprehensible, ot maknih,
Similarly, the recommendable, of manddb, may be elevated to a wiljib
if this is deemed to be in the interest of the coms
stage of its experience and development,

im what may have been

nity in a different

1.4 Ratiocination (Ta‘lil) in the Qur'an

Literally ta'lil means ‘causation’, or a ‘search for the causes’, and refers
tw the logical relationship between cause and effect. But the ‘ulama’ of
jurisprudence tend to use fa'lil and its derivative, ‘illah, for different
purposes. In its juridical usage, ‘illah (effective cause) does not exactly
refer to a causal relationship between two phenomens; it means rather
the ratio of the law, its value and its purpose. Broadly speaking, ‘illah
refers to the rationale of an injunction, and in this sense, it is synony-
mious with hikyah, that is, the purpose and the objective of the law
But there isa difference between ‘illah and hikmah which I shall discuss
in a subsequent chapter on analogical deduction (giyds). There is
another Arabic word, namely sabab, which is synonymous with ‘illah
and the two are offen used interchangeably. Yet the ‘wlama’ of wil
tend Co use sabab in reference to devotional matters (‘ibdddt) and use
illah in all other contexts. Thus it is said that the arrival of Ramadin
as the cause (sabab) of fasting but that intoxication is the ‘illah of the
prohibition in wine-drinking

Ilah and sabab also differ in that ‘illah signifies the immediate cause
where sabab may be intermediate. In reference, for example, to draw-
ing water from a well, if a rope is used, the rope would be the sabab
whereas the act of drawing is the ‘illah of getting water from the well.
Similarly, when a man says to his employee ‘you are dismissed’, the
words that are uttered are the ‘illah of dismissal. But if it is said "you

are dismissed if you leave this house’ and then he leaves, the wor
uttered would be the sabab, and the more immediate factor, which is
the act of leaving the house, would be the ‘illah.

The authority of the Qur'in as the principal source of the Shariah
is basically independent of ratiocination. The believers are supposed to
accept its rulings regardless of whether they can be rationally explained
Having said this, however, there are instances where the Qur’in
justifies its rulings with reference to the benefits that accrue from
them, or the objectives they may serve. Such explanations are often
designed to make the Qur'in easier to understand. To give an
example in the context of encounters between members of opposite
sexes, the believers are enjoined in sra al-Nor (24:30) "to avert their
glances and to guard their private parts

pe gd Nplaisey pa seadl oy Lae

The text then goes on to provide that in doing so they will attain
greater chastity of character and conduct, To give another example
in sOira al-Hashr (59:7) the Qur’3n regulates the distribution of booty
among the needy, the orphans and the wayfarens ‘so that wealth does
not merely circulate among the wealthy’

pS es ony ye OS VS

In the first ayah, averting the glance is justified as it obstructs the means
to promiscuity and zind. The ruling in the second ayah is justified as it
prevents the accumulation of wealth in few hands. Similarly, the Que’an
specifies the rationale of its law in the following instances

And there i life fr you in retaliation, O men of understanding (al-Bagarah,
EIT)

UY Dy dk olaill 9 pSy

Take alms out of your property #0 as to clesme and purify dem thereby (ab
Tawbsh, 9:103),

prea Bae bl yal oye dt

‘And fighe them wntil there is 90 persecution and God's retigion prevails (sb
Bagarah, 2191).

48 PRINCIPLES OF ISLAMIC JURISPRUDENCE
cpl Oy 2b OSG Y go pr shit
Oye 5 Sd) bly coty Bb pt panlamel Le ob Lytelly
pS pies abl ye ay
Even in the spheres af beliefs and ‘ibidat we find, for example, the
following instances of ta‘ lil
Truly rath prevents fom kenorlry and evil (abAnkabOe, 39:48
Sly cleo oe (og Dall Of
{We tent] mewenger who yive yood news ms well ss warnings so that the peopl

Jhoukl have no plea against God after the [sending of] snessengers (aloNis’, 41165

AW OS cali eee ey
Se day ame db le

We also find similar passages in the Qur’n concerning the fasting
of Ramadin (al-Baqarah, 2:138) and the pilgrimage of hajf (al-Hajj,

22:27) where references are made to the benefits of observing them,

Whereas the foregoing are instances in which the text explicitly states
the ‘illak of the injunctions concemed, on numerous other occasions
the jurists have identified the ‘illah through reasoning and jihad. The
identification of ‘ilak in many of the following cases, for example, is
based on speculative reasoning on which the ‘ulamd are not unanimous

that arrival of the specified time is the cause (sahab or “illah) of the prayer;
that the month of Ramadan is the cause of fasting; that the existence
of the Ka'bah is the cause of haji; thar owning property is the cause of
i; that theft és the cause of amputation of the hand; that travelling
is the cause of shortening the prayer and that intentional killing is the
cause of retaliation. These and other similar conclusions with regard
to the assignment of ‘illah have been drawn in the light of supportive
evidence in the Qur'an and Sunnah, but even so many of them are

disputed by the ‘ulema’, These examples will in the meantime serve
to show the difference between the literal/logical meaning of ‘illah
and its juridical usage among the ‘wlama* of jurisprudence."

The First Source of Shariah: the Qur'in 49

The question arises as to whether the incidence of 1'lil in the
Qur'an gives the mujtahid the green light to enquire into the causes
and reasons behind its injunctions, or whether it exists simply to
Gicilitate a better understanding of the text. The ‘ulama’ have held
different views on this issue. The opponents of ta'li! maintain that
divine injunctions embodied in the clear text have no causes unless
the Lawgiver provides us with clear indications to the contrary. Thus
it would not only be presumptuous on the part of the mujtahid to
adopt an inquisitive approach to divine injunctions, but searching for
the cause (‘ilal) or the objective hikmah of the Qur’anic rules amounts
to no more than an exercise in speculation, Besides, the opponents
of ta'lil have argued that the believer should surrender himself to
the will of God, which can best be done through unquestioning
acceptance of God's injunctions. To look into the motive, purpose
and rationale of such injunctions, and wone still, to accept them on
their rational merit, is repugnant to sincerity in submission to God.
Furthermore, in his attempt to identify the rationale of an injunction,
the mujtahid can only make a reasonable guess which cannot eliminate
the possibility of error. There may even be more than one cause oF
explanation for a particular ruling of the Qur'an, in which case one
cannot be certain which of the several causes might be the correct
one. This is the view of the Zahiris. We may ask: what is the proper
‘illah, for example, of the expiation of feeding ten poor persons in
the event of taking false oath: to help the poor, tw punish the rich,
to fight hunger, or to endure a fair distribution of wealth in the
community?

The majority of ‘wlama" have, however, held that the abkam of the
Shari'ah work towards certain objectives, and when these can be
identified, it is not only permissible to pursue them but it is our duty to
make an effort to identify and implement them, Since the realisation
of the objectives (magiyid) of the Sharf'ah necessitates identification
of the cause/rationale of the abkim, it becomes our duty to discover
these in order to be able to pursue the general objectives of the
Lawgiver.*4 Thus it is the duty of the mujtahid to identify the proper
causes of divine injunctions, especially in the event where more than
one ‘illah can be attributed to a particular injunction. The majonty
view on tli! takes into account the analysis that the rules of Shariah
have been introduced in order to realise certain objectives and that
the Lawgiver has enacted the detailed rules of Shariah, not as an end
in themselves, but as a means t0 realising those objectives. In this way,
any attempt to implement the law should take into account not only

ISLAMIC JURISPRUDENCE

50 PRINCIPLES OF

The First Source of Shariah: the Qur’in

at beh

ind the i

the extemalities of the law but also the rationa
credo of Islam to achieve wordly gain
fession is not valid. The reason for

it. Thus when a man

his cor

1 prestige,
ain social pre

or to
this is that the true purpose of confession to the faith is the exaltation
and worship of God, and if this is violated, a formal confession is of
no value. Similarly, if a man says a prayer for the sake of display and
self-commendation, it is not valid. The real purpose and value of the
law is therefore of primary importance, and indeed it is necessary that
the mujtahid identifies it 40 as to be able to implement the law in
accordance with its purpose. The Qur’in admittedly requires un-
questioning obedience to God and to His Messenger, but at the same
time, it exhorts men to understand the spirit and purpose of God's
injunctions, Time and time again, the Qur'an invites the believers to
rational enquiry, as opposed to blind imitation, in the acceptance of
its mesages.¢

Ta'lfl acquires a special significance in the context of analogical
deduction. ‘Ilah is an essential requirement, indeed the sine qua non
of analogy. To enable the extension of an existing rule of the Shar ah
to similar cases, the mujtahid must establish a common ‘iliah between
the original and the new case. Without the identification of a common
illah between two parallel eases, no analogy can be constructed, To
this i¢ may be added that there is a variety of qiyils, known as giyds
mansis al-illah, or qiyis whose ‘illah is indicated in the nags, in which
the ‘illah of the law is already identified in the text. When the ‘illah
is so identified, there remains no need for the mujtahid to establish
the effective cause of the injunction by recourse to reasoning or
ijtihad. However, this variety of giyds is limited in scope when it is
compared to qiyds whose ‘illah is not so indicated on the nusity. Ie thus
remains true to say that ta'lil, that is the search for the effective causes
of the Shari ah rules, is of central importance to qiyis, Further discus~
sion on the “illah of analogy, the manner of its identification, and rules
which govern the propriety of ta'lil in giyas can be found in our
discussion of gipas in a separate chapter below.

There seems to be a confusion on the part of the opponents of ta'lil
about the purpose and nature of ‘lil, The opponents of ta' lil seem
to have perceived this phenomenon as a sign of impudence and
impropriety in regard to belief, In reality, however, this need not be
the case, One may attempt ra'lfl while remaining totally faithful to
the divine origin and essence of the Qur'an. To exercise ta'lil does
not lessen either the binding power or the holiness of the divine
injunctions. We may, for example, offer various interpretations of the

cause of performing the salih or of giving

Muslims

kak; but whether we can
¢ rewon or not, salah and zakah are still obligatory upon

Ls Inimitability (jaz) of the Qur’in

The Que'dn is b ed to be the miracle of Muhammad, the proof
of his prophethood and a testimony to its divine origin. But what
exactly constitutes this miracle is a question that has engaged Muslim
jely believed that the intmitability of
the Qur'in is reflected in at least four aspects of the Qur’in. First, in
its linguistic excellence: many scholars have pointed out that there
exists no piece of Arabic literature that can match the literary excel-
lence of the Qur'in with respect to both content and form. It is
neither pe s rhythen, its genre and word structure are
tsnique. It is the spiritual miracle of the prophethood of Mubammad,
who never learned to read or write, and it was considered far beyond
his own ability to produce a linguistic artefact of this kind. In more
than one place, the Qur'in challenges those who deny its divine
onigin by asking them to produce anything to match it.

The vast majority of scholars have associated jaz with the sublime
style of Qur'in, and many have also highlighted the content and mean-
ing of the Holy Book. The view has thus prevailed that inimitability
is the combined outcome of both meaning and wording which the
Qur’in manifesss in the highes: form of perfection. The style and
rhythen of the Qur’in generate a psychological effect which makes it
inimitable. It is also added that /'jéz is 2 function of the insuperable
manner in which Qur’inic discoune binds meaning, wording and
various literary styles, all of which are conducive to its special prycho-
logical effect. The all-knowing tone of its speech, its beautiful rhythm
and its spirituality are yet other aspects of that total effect that is called
i

The second aspect of i'faz in the Qur’in is its narration of events
which took place centuries ago. The accuracy of the Qur’inic narra
tives concerning such events i generally confirmed by historical
evidence.

The third aspect of (jar in the Qur’dn is its accurate prediction
of future evenss, such as the victory of the Muslims in the battle of
Badr (al-Anfil, $:7), the conquest of Mecca (al-Fath, 48:27) and the
eventual defeat of the Persians by the Roman empire: ‘The Romans
were defeated in a land nearby, but even after this defeat, they will

thinken for generations. It is w

Alor prose:

$2 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The First Source of Shariah: the Qur’in

be victorious in a few years [ff bid'a sinin, literally in a period lasting

to ten years]" (al-Ram, 30:24)

Oye tele aro» wy 225 gal B pal oe
me et)

defeated by the Persians when the luter took
e later defeated when the

The Romans were
Jerusalem in 614 ap. But the Persians w
Romans won the battle of Issus in 622.”

The fourth aspect of i
truth concerning the creation of man, the earth and the planetary
system, The tenets thus inform us

manifested in its scientific

the Qur'in is

We created man from an clay, hen We placed hirw as 4 drop of seme:
in & cute resting place imed the drop into 4 clot, next We turned
the clot into diwue; and then We turned the rime into bones and clothed the

bones with flesh (al-Mu'mindn, 39:48—14)

Libel olan ¢ cial oye UL oy Olay! Lil ily
datas dill Liles dile tb ile ¢ WS 5 9
Lad pllanll U pnS Lillie daaial! Lila’

the earth and the heavens were of one piece, then We parted them
(al-AnbiyS', 21:30)

Pbeindd i, LIS 2 My Cl paeall O}

all life originated in water (al-Anbiys', 21:30)

net Fl yy ery
the universe consisted of flery gas (Hi-Mim, 41:13)
Obes ay cloth

that fertilisation of certain plants is facilitated by the wind (al-Hijr,
15:22)

is cht sf,

Another manifestation of i'jaz in the Qur'dn is seen in its humani~
tarian, legal and cultural reforms, which were unprecedented in the
history of nations. Thus in the sphere of goverment, the ruler and
the ruled were both equally subjected to adjudication under the rule
of law.” In the area of civil transactions and commerce, the Qur'in
established mutual agreement as the norm and essence of all contracts
The principal Qur'inic reform in the area of property was the intro~
duction of the doctrine of istillaf. The Qur’in declares that all
property belongs to God, and that man, in his capacity as the
Vicegerent of God, is a mere trustee whose exercise of the right of
ownership is subject to the benefit or maylabah of society as super-
vised by the government. In the sphere of international relations,
treaty relations, the conduct of war and treatment of prisoners of war,
were all regulated by a set of principles which aimed at the realisation
of justice and respect for human dignity. Relations among individuals
were to be governed by the principles of freedom and equality, and
the state was equally subject to the observance, and indeed the protec-
tion, of these values

1.6 The Occasions of Revelation (Asbab al-Nuzil)

Asbib al-nuzil deal with the phenomenology of the Qur’in, and
explain the events that are related to the revelation of particular
pamages. The best-known ashdb al-nuziil have been related to us by
reliable Companions. One condition for the reliability of such reports
is that the person relating should have been present at the time or the
occasion relevant to a particular passage. The authenticity of such
reports is subject to the same rules as those applied to hadith in
general. In this way, reports from the Successors (tabi'in) only, which
do not go back to the Prophet and his Companions, are considered
to be weak (da'if)."

The knowledge of ashab al-nuzal is necewary for anyone who wishes
to acquire more than a superficial knowledge of the Qur'an, and there
are at least two main reasons for this, One is that knowledge of words
and concepts is incomplete without knowledge of context and the
pature of an audience. For one form of speech — a question for
eample — may also convey other meanings such as elucidation,
surprise, or reprimand, etc, Similarly, a command may signify mere

54 PRINCIPLES OF ISLAMIC

juRisprur

commendation, of a threat, etc., depending on the
circums in which it is issued and the nature of 1
An incidental meaning or a shade of expression 1
the main purpose of a particular text and this cannot be known wit
out the knowledge of asbab al-nuzal. Ignorance of asbab al-nuziil may
thus lead to the neglect or misunderstanding of a part or even the
whole ofan injunction.” S

lead to unwarranted disagreement and even conflict, for the Qur’in
ages which contain probability (
nces in the text can be clarified by reference

permissibility

audie

pay at times reflect

‘ondly, ignorance of asbab alenuzil may

shir) and ambi-

comprises some pa
ity (mujmal). Such inst
to the circumstances in which they were revealed. It is reported that
ina conversation with ‘Abd Allah ibn ‘Abbis, ‘Umar ibn al-Khayyib
asked him: ‘Why should there be disagreement among this wmmah,
ill of whom follow the same Prophet and pray in the direction of
the same qiblali?” To this Ibn ‘Abbis replied,
Faithful, the Qur'tn was sent down to us, we read it and we know
the circumstances in which it was revealed, But there may be people
after us who will read the Qur'in without knowing the occasions of
its revelation. Thus they will form their own opinion, which might
lead to conflict and even bloodshed among them."

Umar disagreed with Ibn ‘Abbis for saying so at first but, when the
latter departed, ‘Umar pondered over what he had said. He then sent
for Ibn “Abbas to tell him that he agreed with his view,” It has been
observed that by making this remark, Ibn ‘Abbas was referring to
certain misinterpretations of the Qur'in that had occurred owing to
ignorance of ashab al-nuzal. In particular, some QurSnic passages had
been revealed conceming the unbelievers, but were taken by some
commentators to be of general application to Muslims and non-
Muslims alike. There were also passages in the Qur’in which were
revealed in reference to the conduct of people who had died before
the revelation of certain rulings, and yet these were uken by some
commentators to be of general application."

Furthermore, the knowledge of asbdb al-muzil is informative of the
conditions of Arab society at the time. Their customary linguistic
usages and their nuances of expression were naturally reflected in the

‘O Commander of the

Qur'an. The peculiarities of Arab social customs often gave exegeses
of the Quranic text a perspective and offered solutions to some of
the doubts or ambiguities that would otherwise be difficult to under-
stand. The ashab al-nwzal are fully cognisant of the customary
practices of Arab society and the relationship, if any, of such practices
to Qur'dnic legislation. To give an example, the Qur'anic dyah ‘Our

The First Source of Shariah: the Qur'in $s

Lord condemn us not, if we forg
2-286)

or make a mistake’ (al-Bagarah,

tlhst ft of Geigy &,
5) ¥

is thought to refer to unbe!
unbelief are uttered inadvertently a, just as words of
unbelief that are expressed under duress are forgiven. However, the
‘exemption here is not extended to similar pronouncements, such as
statements of divorce, freeing of a slave, or sale and purchase, for
freeing a slave was not known in the custom of the Arabs nor were
inhibitions over oath-taking (ayman), The general support of this dyah
is thus given a concrete application in the light of prevailing custom, "

that is, when words that express
This is forgiv

NOTES

The Qus’te ale calls inelf by altemative names, such as hii, h
dhikr (Book, Guide, Dutmgunher, and Remembrance

A, fanpin, and

cavely), Whee the definite

a preficed to the (Qur the w

the Book; but without duis

prefix, the Quito can mess Thus one may refee

ther the whole o » part of the Book

Bos segpiles se oF dyah thereof as the Qui'dn, but nox as al-Qur'sn
Hughes, Disionary, pp. 48sf& von Deatfer, ‘Lim, pp. oat

Shulkts. obi, pp. aise: Qauran, Tash, p. By; Baden, Cl, p72
Kha, “ibe, p. a5; Abdur Rahim, Juriprudener, p. 6, Abi Za
For un exchatve eeatnent of wont of foreign ongin tn the Qur'an vee Shawkart
Inhdd, yp. 230F. See sho Ghasall, Muay, 1, 6

6. This report ix stmibuted wo « Nab ibn Maryam who hae confirmed that AbO
amtésh chugs hs iia ruling. See AbO Zabrab, "Ul po; ShalkDs, aldsum, p. 47%
Sabor, Medial p. 4

2. SabOnt, Madbhal, pp. 41-43; Abo Zahra, Ui p. 61; Quin, Tab, pp. spf

A. Ghar, Atwoayl, 1, 64; Shawkint, Jnhdd, p, yo; ShaltOt,al-ilim, p. 440, The
sume would apply w the pwo other instances of variant readinya which are atinbated (0
“Abd Allah ibs Mar'dd concerning the punishunent of theft, and the form of divorce
which is known as Flt" in Gra al-Mi"idah (5:38) and al-Bagarab (2.236) respectively
Since these are only supported by solitary repare (Shad) they do not comutute a part of
the Qurin
9 lama, Mopar, pp. fh
0. Abb Zabrah, Lisi. p, 3; Abdur Rahim, Junqpniden

11, Te be precise, the Meccan period lated twelve years, five months and thirteen
days, and the Medinan period, nine years, seven months and seven days

12 Cf Sabin, Medbhel, pp. 41-4; Khallif lim, p. 24

13. CE. won Dealer, ‘Ukim, p. 96.

14 Ibid, p91

h, "Ul 59.

6 PRINCIPLES OF ISLAMIC JURISPR . of Shariah: the in $7
iting on Ghazi a . a im, p
alevlat nly amount to » rough extimate (Mustay 40. F det < r P Abo Zahrah,
9. Khalla Aba Fe eta an f gave under the rule of ty
‘ pod to snap . x Citizen and State’, pp. 300
A anol - CE Sabon, Adal i, Abo Z l 6r; Kamali, “The Citizen and
> f able to pay the kaffrah + thick. p
Badrin, Ul, p66 Khudart, Usa. pp hen Qudatral fan was charged with
hale, aflame, c U alk . punish his, but the
hbk, Muwifogh duqtin, Tasha ss yu yh M hi defence. Thi
ayibt, Mul, 1, no bebeve and do good deeds for what they
b wu fed ch fearing." Iho M. Jairnest that he was one of them.
alee, aL, pp. Aba 2 F Abd Allah ibn ‘Abbis refuted this view and explained that this particular dyuh had been
po vealed 4 POF before wine-drinking was definitively forbidden,
Abo Za) pe nH. . thid., 5
For 3 further di
78; Alb Zuheah, Ul, p. 133: K
r p. 29,
Zukhraf, 43:12), and "He created cattle fre
at of their meat’ (al-Nabl, 1424); unnd "Say, whe 3
nich Hee hus evans. and th
al Aas 7
4%. CE Sha'ban, ’M
42. CE Ahmad Has p
‘ Ps 104
44. Thn Haar, thik, VIL, pp. 76fl, Sint, Madlal, p rf
lin the Que'sn see the vection on gly below where 1
45- Cf Alunad Hasan, ‘Raionalin

CHAPTER THREE

The Sunnah

Introduction

Literally, Sunnah means a clear path or a beaten track but it is also

used to imply 1

mative practice, or an established course of conduct

A Sunnah may be a good example or a bad one, and it may be set by
In pre-Islamic Arabia, the Arabs

used the word 'Sunnah’ in reference to the ancient ai

an individual, a sect or a community
continuous
practices of the community that they inherited from their forefathers,
Thus itis said that the pre-Islamic tribes of Arabia each had their own
sunnah, which they considered the basis of their identity and pride.’ The
opposite of Sunnah is bid'ah, or innovation, which is characterised
by lack of precedent and continuity with the past. In the Qur’in, the
word ‘Sunnah’ and its plural, sunan, have been used on a number of
occasions (sixteen times to be precise). In all these instances, Sunnah
has been used to imply an established practice or course of conduct
Typical occurrences of "Sunnah in the Qur’in are “sunnat
(the worn-out ways of ancient people) (al-Kahf, 18:55)
(God's way of practice of doing things) (al-Fath, 48 al-Isra",
7) and ‘sunan’ (traditions, ways of life) (al—‘Imran, 3:137). It is
interesting to note that the phrase ‘sunnat Allah’ occurs in nine of the
sixteen occasions. To the ‘wlama’ of hadith, Sunnah refers to all that

wwalin’
. sunnat Allah

is narrated from the Prophet, his acts, his sayings and whatever he has
tacitly approved, plus all the reports which describe his physical
attributes and character, The ‘wlama” of jurisprudence, however,
exclude the description of the physical features of the Prophet from
Sunnah al-Nabi (or Sunnah al-Rasil), that

the definition of Sunnah.

The Sunnah $9

is, the Prophetic Sunnah, does not occur in the Que
the phrase uswah hasanah (excellent conduct) which occurs in siira
al-Abgab (33: 21) in reference to the exemplary conduct of the Prophet
is the nearest Qur'Snic equivalent of Sunnah al-Nabi,* The uswah, or
example of the Prophet, was later interpreted to be a refe
Sunnah. The Qur’in also uses the word ‘hikmah’ (lit. w
indicate a source of guidance that accompanies the Qur’in itself
Al-Shafi't quotes at least seven instances in the Qur'an where ‘hikmah’
‘occurs next to al-kitdb (the Book). In one of these passages, which
occurs in sOra al-Jum‘ah (
Almighty sent a Messenger to educate

‘teaching them the Book and the hikmal’

as such, But

for example, we read that God
id to purify the people by

le tle he ge Viney cme Qe cpl ya
USL y ASI galery pt ity

According to al-Shifi't's interpretation, which also represents the view
‘of the majority, the word “hikmah’ in this context means the Sunnah
of the Prophet. The Book is clearly the Qur'in, and this is succeeded
by ‘hikmah’ in a context where God Most High mentions His favour
to His creatures. The Qur'in has in numerous places emphasised
obedience to the Prophet, so it would appear most likely that ‘hikmah’
refers to the Sunnah of the Prophet.’ Both the terms “Sunnah and
‘Sunnah Rasil Allah’ have been used by the Prophet himself and his
Companions. Thus when the Prophet sent Mu'adh ibn Jabal as judge
to the Yemen, he was asked about the sources on which he would
rely in making decisions. In reply Mu‘adh referred first to the "Book
‘of God’ and then to the “Sunnah of the Messenger of God’.

eg Of = phenyl il de - J Jou fil
PP NY ge BS 2) J 6 creat SI or on Sle
bP SE, ah OS Qe pal iJ # sLaall l
2 op JG dt J es UE tI is g ae
Ys gh deel Jt ae OS

60 PRINCIPLES OF ISLAMIC JURISPRUDENCE

ther hadith, the Prophet is reported to have said, ‘I left two
hong you. You shall not go astray so long as you hold on to

things
them: the Book of God and my Sunnah |sunnati]."”

ney AS Fh Stl Nyland SS ESF

There is evidence to suggest that the Sunnah of the Prophet was intro-
duced into legal theory by the jurists of Iraq towards the end of the
first century. The term ‘Sunnah of the Prophet’ occurs, for example
in owo | addressed to the Umayyad ruler, “Abd al-Malik ibn
Marwan (d. 86 an) by the Khirijite leader ‘Abd Allah ibn ‘Ibad, and
al-Hasan al-Bisri. But this might mean that the earliest availat
‘record on the establishment of terminology dates back tw the late
first century Hijrah, This evidence does not necessarily prove that the

terminology was not in use before then.”*

Initially the use of the term ‘Sunnah’ was not restricted to the Sunnah
of the Prophet but was used to imply the practice of the community
and precedent of the Companions, This usage of ‘Sunnah’ seems to
have continued until the late second century when al-Shafi'l tried to
restrict it to the Sunmuah of the Prophet alone, Sometimes the Arabic
definite article ‘al’ was prefixed to Sunnah to denote the Sunnah of
the Prophet while the general usage of Sunnah as a reference to the
practice of the community, of its living tradition, continued. By the
end of the second century Hijrah, the technical/juristic meaning of
Sunnah appears to have become dominant, until the ‘ulamil’ used it
exclusively to imply the normative conduct of the Prophet” The
ulama’ thus discouraged the use of such expressions as the Sunnah of
Aba Bakr or ‘Umar, In their view, the proper usages of Sunnah were
to be confined to Sunnah Allah, and Sunnah Resi! Allah, that is the
Sunnah of God, or His way of doing things, and the Sunnah of His
Messenger, But there were variant opinions among the “ulama’ which
disputed the foregoing, especially in view of the hadith in which the
Prophet is reported to have said, "You are to follow my Sunnah and
the Sunnah of the Rightly-Guided Caliphs.”

= Sala ot cobel J eA dey Sey Sle

But again, as al-Shawkiini points out, it is possible that in this hadith,
the Prophet had used *Sunnah’ as a substitute for ‘tarigah or the way
that his Companions had shown.’ Al-Shawkini’s interpretation

The Sunnah 61

suggests that the Prophet may not have used ‘Sunnah’ in the exclusive
sense that the ‘ulam” later attempted to attach to this term.

In its juristic usage, ‘Sunnah’ has meant different things. To the
‘ulama’ of usil al-figh, Sunnah refers to a source of the Sharfah and a
legal proof next to the Qur'an. But to the “wlama” of figh, "Sunnah?
primarily refers to a shar'f value which falls under the general category
of mandiib. Although in this sense Sunnah is used almost synonymously
with mandab, it does not necessarily mean that Sunnah is confined to
the mandab. For in its other usage, namely as a source of Shariah,
Sunnah may authorise and create not only a mandiib but also any of
the following: wajib, harim, makrih and mubih. Thus in the usage of
sil al-figh, one might say that this or that ruling has been validated
by the Qur'in or by the Sunnah, whereas a fagth would be inclined
to say that this or that act is Sunnah, which means that it is neither
fard nor wajib; it is one of the tive values which falls under the
category of mandab. To the ‘wlama’ of hadith, on the other hand,
‘Sunnah includes all that is narrated from the Prophet, his words, acts,
and tacit approvals, whether before or after the beginning of his
prophetic mission, and once again regardless of whether it may
contain a ruling of the Sharfah or not."

Notwithstanding the fact that the ‘wamd" have used Sunnah and
hadith almost interchangeably, the two terms have meanings of their
‘own, Literally, hadith means 3 narrative, communication of news con-
sisting of the factual account of an event. The word occurs frequently
in the Qur'in (twenty-three times to be precise) and in all cases it
carries the meaning of a narrative or communication. In none of these
instances has hadith been used in its technical, exclusive sense, that is,
the sayings of the Prophet. In the early days of Islam, following the
demise of the Prophet, stories relating to the life and activities of the
Prophet dominated all other kinds of narratives, so the word began
to be used almost exclusively for a narrative from, or a saying of, the
Prophet.'*

Hadith differs from Sunnah in chat hadith is a narration of the
conduct of the Prophet whereas Sunnah is the example of the law that
is deduced from it. Hadith in this sense is the vehicle or the carrier of
Sunnah, although Sunnah is a wider concept and used to be so especially
before its literal meaning gave way to its juristic usage. Sunnah thus
referred not only to the hadith of the Prophet but also to the estab-
lished practice of the community. But once the literal meanings of
hadith and Sunnah gave way to their technical usages and were both
exclusively used in reference to the conduct of the Prophet, the two

PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Sunnah 63

became synonymous. ‘This was largely 2 result of al-Shafi't's efforts,
who insisted that the Sunnah must always be derived from a genuine
hadith and that there was no Sunnah outside the badith. In the
pre-Shifi'l period, hadith was also applied to the statements of the
Companions and theit Successors, the sabi, It thus appears that
hadith began to be used exclusively for the acts and sayings of the
Prophet only after the distinction between the Sunnah and hadith was
set aside.”

There are ewo other terms, namely khabar and athar, which have
often been used as alternatives to hadith. Literally, khabar means “news
or report’, and athar, “impression, vestige or impact’, The word khabar
in the phrase ‘khabar al-wahid’, for example, means a solitary hadith
The majonty of ‘wlama’ have used hadith, khabar and athar synony~
mously, whereas others have distinguished khabar from athar, While
the former is used synonymously with hadith, athar (and sometimes
‘amal) is used to imply the precedent of the Companions.'*

The majority of ‘ulama’ have upheld the precedent of the Com-
panions as one of the transmitted (naglt) proofs. The jurists of the
early schools of law are known to have based opinions on athar. Imam
Millik even went so far as to set aside the Prophetic hadith in fivous of
thar on the strength of the argument that athar represented the genuine
Sunnah, as the Companions were in a better position to ascertain the
authentic Sunnah of the Prophet. There were indeed, among the
Companions, many distinguished figures whose legal acumen and
intimate knowledge of the sources equipped them with a special
authority to issue fatwiis. Sometimes they met in groups to discuss the
problems they encountered, and their agreement or collective judge~
ment is also known as athar, For al-Shafi'l (d. 204 An), however, athar
does not necessarily represent the Sunnah of the Prophet. In the
absence of hadith from the Prophet, al-Shafi't followed the precedent
of Companions, and in cases where a difference of opinion existed
among the Companions, al- Shifi‘l preferred the opinion of the first
four caliphs over others, of one which was in greater harmony with
the Que'in."' According to al-Shifi'l, the Sunnah, coming direct from
the Prophet in the form of hadith through a reliable chain of narrators,
is a source of law irrespective of whether it was accepted by the
community or not. He emphasised the authority of the hadith from the
Prophet in preference to the opinion or practice of the Companions
Al-Shafi't contended that hadith from the Prophet, even a solitary
hadith, must. take priority over the practice and opinion of the
community, the Companions and the Succesors,"* Al-Shifi'l directed

his efforts mainly against the then prevailing practice among jurists
of giving preference to the practice of the community and the
decisions of the Companions over the hadith. Al-ShafiT attempted
to overrule the argument, advanced by Imam Milik, for example,
that Medinan practice was more authoritative than hadith. In his
Muwatta', for example, Malik (d. 179 An) generally opens every legal
chapter with a hadith from the Prophet, but in determining detailed
legal issues, he does not consistently adhere to the principle of the
priority of hadith over athar, It is interesting to note that the Muwarfa’
contains 1,720 hadith, out of which 822 are from the Prophet and the
remainder from the Companions, Successors and others. This would
suggest thar Imam Malik was not overly concemed with the distinc-
tion berween hadith and athar that was to become the main theme of
al-Shafi'l’s endeavour to establish the overriding authority of the
Prophetic hadith."

I, Proof-Value (Hujilyyah) of Suinah

The ‘wlamd’ are unanimous on the point that Sunnah is a source of
Sharf‘ah and that in its rulings with regard to halal and hardm, it stands
‘on the same footing as the Qur’in."* The Sunnah of the Prophet is a
proof (hujjah) for the Qur’in, testifies to its authority and enjoins the
Muslim to comply with it. The words of the Prophet, the Qur'in
tells us, are divinely inspired (al-Najm, 3:3). His acts and teachings
that were meant to establish a rule of Sharfah constitute a binding
proof.” While commenting on the Quranic ayah which states of the
Prophet that "he docs not speak of his own desire, it is none other
than waby sent to him’, al-Ghazalt writes that some of the divine
revelation that the Prophet received constitutes the Que'ln, whereas
the remainder is Sunnah. The words of the Prophet are a hujjah
for anyone who heard the Prophet saying them, As for us and the
generality of Muslims who have received them through the verbal and
written reports of narrators, we need to ascertain their authenticity.”
The proof of authenticity may be definitive (gaff), o it may amount
toa preferable conjecture (al~zann al-rijih); in either case, the Sunnah
commands obedience of the mukallaf. All the rulings of the Prophet,
especially those which correspond with the Qur’in and corroborate
its contents, constitute binding law.**

In more than one place, the Qur'an enjoins obedience to the
Prophet and makes it the duty of the believers to submit to his judge-
ment and his authority without question. The following dyar are

64 PRINCIPLES OF ISLAMIC J

ISPRUDENCE

The Sunnah 65

explicit on this theme, all of which are quoted by al-Shafi't in his
renowned work, al-Risdlalr

And whatever dhe Meteo e, and whisever he forbids you
sharin from it (al-Hfahe,

Iygald a pSU Ley opin Jp StI Ly
‘Obey God and obey dhe Memenger and those who are in charg

you Should you happen to dispuce over something, 1

the Mesengee
PM Sahy Spay abl oT oil Gully
Spe ly Bt Sh 092d ogee oO pies OP pe

To refer the judgement of a dispute to God means recourse to the
Qur'in, and referring it to the Messenger means recoune to the
Sunnah," In another passage, the Qur'dn emphasises: "Whoever

obeys the Messenger verily obe

a gut ab J ye pt cles
And finally, the Qur'an is categorical about the fact that the definitive
rulings of the Qur'an and Sunnah are binding on the believers in that
they are no longer at liberty to differ with the dictates of the divine
will or to follow a course of their own choice: "Whenever God and
His Messenger have decided a matter, it is not for a believing man or

woman to follow another course of his or her own choice’ (al-Abz3b,
33:30),

God" (al-Nisi’, 4:80).

Vl Spey di cab 13] Reape Vy cagh OS Ley
rt ep tphl ph 0S af

In yet another place the Qur'an stresses that submission to. the
authority of the Prophet is not a matter of mere formalistic legality
but is an integral part of the Muslim faith: "By your Lord, they will
not believe till they make you a judge regarding disagreements
between them and find in themselves no resistance against accepting
your verdict in full submission’ (al-Nisi’, 4265).

pee ESSA Se Oey YL
Ladd pals Coad bem eget! Git YE

It is concluded from these and other similar passages in the Qur'an
that the Susmah is a proof next to the Qur’sn in all shar'f matters, and
that conformity to the terms of Prophetic legislation is a Qur'inic
obligation on all Muslims. The Companions have reached a con-
sensus on this point: both during the lifetime of the Prophet and
following his demise, they eagerly obeyed the Prophet's instructions
and followed his examples regardless of whether his commands or
prohibitions originated in the Qur'in or otherwise. The first wo
caliphs, Abo Bakr and ‘Umar, resorted to the Sunnah of the Prophet
whenever they knew of it. In cases when they did not know, they
would ascertain whether other Companions had any knowledge of
the Prophetic Sunnah in connection with particular issues, The
Caliph ‘Umur is also on record as having issued written instructions
to his judges in which he asked them to follow the Sunnah of the
Prophet whenever they could not find the necessary guidance in the
Qur'in.*

II. Classification and Value: (A)

‘Sunnah has been classified in various ways, depending, of course, on
the purpose of classification and the perspective of the investigator,
However, two of the most commonly accepted criteria for such
classifications are the subject-matter (matn) of Sunnah and the manner
of its transmission (isndd). This section is primarily concerned with
the classification of Sunnah from the viewpoint of its subject-matter

To begin with, the Sunnah is divided into three types, namely
verbal (gawli), actual (fi'lf) and tacitly approved (tagrirf). The other
division of the Swnnah which will concer us here is its division into
legal and non-legal Sunnah

The verbal Sunnah consist of the sayings of the Prophet on any
subject, such as the hadith ‘ft al-si'imah zakah’ (livestock is lisble to
zakdl})* The actual Sunnah of the Prophet consists of his deeds and
instructions, such as the way he performed the salih, the fasting, the
rituals of hajj, or the transactions he concluded, such as sale and giving
Joans, etc. Similarly, the fact'that the Prophet authorised mutilation
of the hand of the thief from the wrist illustrated, in actual terms, how

66 PRINCIPLES OF ISLAMIC JURISPRUDENCE

the Quranic ayah (al-M3’idah, 5:38) should be implemented. This
dyah simply states chat the hand should be cut without specifying
which part. The tacitly approved Sunnah consists of the acts and
sayings of the Companions which came to the knowledge of the
Prophet and of which he approved. The tacit approval of the Prophet
may be inferred from his silence and lack of disapproval, or from his
express approval and verbal confirmation.” An example of such a
Sunnah is the report that two of the Companions went on a journey
and when they failed to find water for ablution, they both performed
is, wiping the hands, face

the obligatory prayers with tayammum,
and feet with clean sand. Later, when they found water, one of them
performed the prayers again whereas the other did not. Upon their
return, they related their experience to the Prophet, who is reported
to’ have approved both courses of action. Hence it became Sunnah
agririya.” Another example of this is the report that one of the
prominent Companions, ‘Amr ibn al~‘As, said that in the campaign
of Dhit al-Salisil he had had a wet dream in the night, but owing
to extreme cold he did not take a bath but instead performed the
morning alah with tayammum, He then related this to the Prophet,
who laughed but said nothing, which would imply that the act in
question is permissible in similar circumstances, that is, when extreme
cold proves to be hazardous to health.*

Another example is the instruction, recorded by al-Bukhart, that
the Prophet issued on the occasion of the Battle of Bani Qurayzah
where he said that "no one shall pertorm the [salah of) *agr except in
Band Qurayzah’

AS oe OY paal pStol Gale Y

Some Companions took this literally and did not pray the ‘ayr at the
time of ‘agr, whereas others understood it to mean that they should
hurry to reach their destination but also perform the “asrin time. Later,
when the Prophet leamed of it, he did not object to either course of

The sayings of Companions such as “we used to do such and such
during the lifetime of the Prophet’ constitute a part of Sunnah tagririya
only if the subject is such that it could not have failed to attract the
attention of the Prophet. An example of this is the saying of Aba Sa‘id
al-Khudri that ‘for the charity of ‘fd al-Fipr, we used to Bive a sf of
dates or of barley’. This is a matter that could not have remained
hidden and therefore constitutes Sunnah tayrfriyya”?

The Sunnah 67

There is a view that these three varieties can be unified under the
actual Sunnah, because words that are spoken are an act of the tongue,
and tacit approval of something may also be seen as an act of the heart
But this view is not widely accepted, despite its basic truth, simply
because general custom, and also the Qur’in itself, differentiate
between words and deeds. Note, for example, the text where we
read, ‘It is a heinous abomination in the sight of God that you say
things which you do not do’ (al-Saff, 61:3)

Opes Y Libya ob bt ue Lie

Words and deeds are, therefore, two different things, and hence the
classification above.”

The entire bulk of the Sunnah, that is, the sayings, acts and tacit
enactments of the Prophet, may once again be divided into two types:
non-legal and legal Sunnah

Non-legal Sunnah (Sunnah ghayr tasheiyyah) mainly consists of the
natural activities of the Prophet (al-af‘al al-jibilliyyah) such as the
manner in which he ate, slept, dressed, and such other activities as do
not seek to constitute a part of the Shari‘ alt. Activities of this nature
are not of primary importance to the Prophetic mision and there-
fore do not constitute legal norms. According to the majority of
lama’, the Prophet's preferences in these areas, such as his fivourite
colours, or the fact that be slept on his right side in the first place,
ete., only indicate the permissibility (ibdhah) of the acts in question."
The reason given is that such acts could be either wajib, mandab or
merely mubth. The first two can only be established by means of
positive evidence: usjib and mandab are normally held to be absent
unless they are proved to exist. Since there is no such evidence to
establish chat the natural activities of the Prophet fall into either of
these two categories, there remains the category of mubilh and they
fall in this category for which no positive evidence is necessary,!*

‘On assimilar note, Sunnah relating to specialised ot technical know-
ledge, such as medicine, commerce and agriculture, is once again held
to be peripheral to the main function of the Prophetic mission and
is therefore not a part of the Sharf'ah, As for the acts and sayings of
the Prophet that related to particular circumstances such as the strategy
of war, including devices that misled the enemy forces, timing of
attack, siege or withdrawal, these too are considered to be situational
and not a part of the Shariah?

There are certain matters which are peculiar to the person of the

68 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Prophet so that his example concerning them does not constitute
general law. For instance, polygamy above the limit of four, marriage
without a dower, prohibition of remarriage for the widows of the
Prophet, connected fasting (sawm al-wisal) and the fact that the Prophet
admitted the testimony of Khuzaymah ibn Thibit as legal proof. The
rules of Shari ah concerning these matters are as stated in the Qur'in,
and remain the legal norm for the generality of Muslims. According
to the majority opinion, the position in regard to such matters is
partly determined by reference to the relevant text of the Qur'in an
the manner in which the Prophet is addressed. When, for example, the
Qur'tn addresses the Prophet in such terms as ‘O you Messenger” or
*O you folded up in garments’ (al-Muzzammil, 73:1; al-Muddaththir,
74:1), it is implied that the address is to the Prophet alone unless there
is conclusive evidence to suggest otherwise."

Certain activities of the Prophet may fall in between the two
tes of legal and non-legal Sunnah as they combine the attributes
of both, Thus it may be difficult to determine whether an act was
strictly personal or was intended to set an example for others to follow
It is also known that at times the Prophet acted in a certain way which
was in accord with the then prevailing custom of the community. For
instance, the Prophet kept his beard at a certain length and trimmed
his moustache. The majority of ‘lama’ have viewed this not as mere
‘observance of the familiar usage at the time but as an example for the
believers to follow. Others have held the opposite view by saying that
this was a part of the social practice of the Arabs which was designed
to prevent resemblance to the Jews and some non-Arabs who used
to shave the beard and grow the moustache. Such practices were, in
other words, a part of the current usage and basically optional
Similarly, it is known that the Prophet used to go to the ‘id prayers
(sala al-‘id) by one route and return from the mosque by a different
route, and that the Prophet at times performed the haji pilgrimage
while riding a camel, The Shafi‘l jurists are inclined to prefer the
commendable (mandib) in such acts to mere permissibility whereas
the Hanafis consider them as merely permissible, or mubih. These
approaches are taken basically in regard to shar'f matters and things
which the Prophet might have done in order to gain the pleasure of
God, As for non-sharT matters such as trade and agriculture, Imam
Malik and the Hanafi jurist al-Kharkhi have held that in the absence
of any indication, the Prophet's affirmative acts indicated permissi~
bility whereas Imam Shafi'l and many Hanafls have held that they
indicated mandiib,?”

cat

The Sunnah 69

The legal Sunnah (Sunnah tashriyyah) consists of the exemplary
conduct of the Prophet, be it an act, saying, or a tacit approval, which
incorporates the rules and principles of Shariah. This variety of Sunnah
may be divided into three types, namely the Sunnah which the
Prophet laid down in his capacities as Messenger of God, as the head
of state or imam, or in his capacity as a judge. We shall discuss each
of these separately, as follows.

(1) In his capacity as Messenger of God, the Prophet has laid down
tules which are, on the whole, complementary to the Quran, but
also established rules on which the Qur'an is silent. In this capacity,
the Sunnah may consist of a clarification of the ambiguous (mujmal}
Parts of the Qur'in or specifying and qualifying the general and the
absolute contents of the Qur’in. Whatever the Prophet has authorised
pertaining to the principles of religion, especially in the area of
devotional matters (‘ibiddt) and rules expounding the lawful and the
walawful, that is, the halal and hanim, consticutes general legislation
(tashrt “dmm) whose validity is not restricted by the limitations of time
and circumstance. All commands and prohibitions that are imposed
by the Sunnah are binding on every Muslim regardless of individual
circumstances, social status, or political office. In acting upon these
Jaws, the individual normally does not need any prior authorisation
by a religious leader or the government.”

There is evidently a difference between these two types of Sunnah.
‘What the Prophet has said or done by way of conveying the message,
wrote al-Qarafi, in the Thirry-Sixth Distinction of his Kinib al-Purig,
“becomes a general rule for everyone to whom it is addressed until
the day of resurrection, and everyone must act directly, be it an obliga-
tion, a prohibition or even an ibahah. But everything that the Prophet
has authorised in his capacity as the imam, it is not permissible for
anyone to act upon it without obtaining a prior authorisation of the
imam, because the Prophet himself acted in that capacity and it would
be in keeping with his example to follow the same.

In the spheres of government administration and politics, there are
evidently matters such as the signing of treaties, division of the war
booty, declaration of war, tactical decisions concerning military expe-
ditions, and the appointment of officials in which the Prophet acted
in his capacity not as the Messenger of God, but as the head of state.

The question arises as to how it is determined that the Prophet
acted in one or the other of his three capacities as mentioned above.
It is not always easy to answer this question in categorical terms, The
‘uncertainty that has arisen in answering this question in particular

7O PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Sunnah 71

cases is, in fact, one of the main causes of juristic disagreement (ikdhtilaf)
among the fugaha’. The ‘ulama’ have on the whole attempted to
ascertain the main thrust, or the direction (jihal) of the particular acts
and sayings of the Prophet. An enquiry of this nature helps to provide
an indication of the value of the Sunnah in question: whether it
constitutes an obligation, commendation, or ihahah on the one hand,
or a prohibition or abomination (kardhah) on the other.

When the direction of an act is known from the evidence in the
sources, there remains no doubt as to its value. If, for example, the
Prophet attempts to explain an ambiguous ruling of the Qur'an, the
explanation so provided would fall into the same category of values
as the original ruling itself. According to the majority of ‘wlamd’, if
the ambiguous of the Qur'n is known to be obligatory or commend-
able, the explanatory Sunnah will carry the same value. For example,
all the practical instructions of the Prophet which explained and
illustrated the obligatory salah would be wijib and his acts pertaining
to the supererogatory prayers, such as salah on the occasion of lunar
and solar eclipse (salat al-khusiif wa al-kusif), would be mandi.”
Alternatively, the Sunnah may itself provide a clear indication as to
whether a particular rule it prescribes is wiljib, mandi, or merely
permissible. Another method of ascertaining the value of a particular
act is to draw an analogy between an undefined act and an act or
saying whose value is known, Additionally, the subject-matter of the
Sunnah may provide a sign or an indication as to its value. With regard
to prayers, for example, the call to prayers, or adhdn, and the call
which immediately precedes the standing to congregational prayer
(the igdmah), are indications of the obligatory nature of the prayer. For
it is known from the rules of Shariah that adhdn and igamah precede
the obligatory salait only. A salah which is not obligatory such as the
id prayer, or sala al-istisqd’ (prayery offered at the time of drought),
are not preceded by the preliminaries of adhan or igdmah, Another
method of evaluating an act is by looking at its opposite, that is, its
absence. If it is concluded that the act in question would have been
in the nature of a prohibition had it not been authorised by the
Prophet, then this would imply that it is obligatory. For example,
circumcision is evaluated to be an obligation. Since it consists essen-

tially of the infliction of injury for no obvious cause, had it not been
made into an obligation, then it would presumably be unlawful. Its
validation by the Shariah, in other words, is taken as an indication
of its unjith, This explanation is basically applicable to all penalties
the Shari‘ah has prescribed, although in most cases the value of the

prescribed punishment is understood from the direct rulings of the
relevant texts. And lastly, an act may require the belated performance
(qada’) of a wajib or a mandib, and as such its value would correspond
to that of its prompt performance (ada’).

The foregoing are the categories of acts whose direction and value
can be ascertained. However, if no such verification is possible, then
one must look at the intention behind its enactment. If a Prophetic
act is intended as a means of seeking the pleasure of God, then it is
classitied as mandiib; and according to a vanant view, as wiih. However,
ifthe intention behind a particular act cannot be detected either, then
it is classified as uiijih, and according to a vanant view as mandab; but
the matter is subject to interpretation and jjtihad.*'

(2) All the rulings of Sunnah which onginate from the Prophet
in his capacity as imam or head of state, such as the allocation and
expenditure of public funds, decisions pertaining to malitary strategy
and war, appointment of state officials, distribution of booty, signing
of treaties, etc, partake of the legal Sunnah which, however, does not
constitute general legislation (tashri* “dmm). Sunnah of this type may
not be practised by individuals without obtaining the permission of
competent government authorities first. The mere fact that the
Prophet acted in a certain way, or said something relating to these
matters, does not bind individuals directly, and does not entitle them
to act on their own initiative without the express permission of
the lawful authority. To give an example, according to a hadith,
"Whoever kills a warrior [in battle} may take his belongings’?

ete ab ab JS oe

The ‘ulama" have differed on the precise import of this hadith.
Imam Malik held that the Prophet uttered this hadith in his capacity
as imam, in which case no-one is entitled co the belongings of his
victim in the battlefield. without the express authorisation of the
imam. The majority have held the view that this hadith lays down a
general law which entitles the soldier to the belongings of the
deceased even without the permission of the imam.

On asimilar note , when the prophet instructed Mu‘adh ibn Jabal,
upon sending him to the Yemen, to ‘take a dinar from every adult
for poll tax’,

Alas pe JS oy de

PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Sunnak 73

the qualification here was evidently done in the capacity of imam,
who considered this to be appropriate and fair. But this was not a
religious edict, such as the tthe or one-twentieth that have been
specified in relation to zakih. This also explains why the Caliph
Umar ibn al-Khaytab later imposed different amounts of jizyah, rang-
ing between twelve and forty-cight dirhams, that is about one to four
dinars. The Caliph had evidently understood that the Prophet-imam
had noe enacted a permanent rule of the Shari'ah and that the exact
quantity was to be determined in the light of prevailing conditions.

The Hanafis have also held that the supplementary punishment of
exile (or imprisonment for one year in zind), which the Prophet
imposed in some cases, was ordered by way of siydsah and ta‘zfr, that
is, in his capacity as imam, Based on this interpretation, the Hanafis
have held the one year imprisonment to be a discretionary, as opposed
to obligatory, punishment which the imam may or may not impose

Al-Qaradiwt has discussed both these examples, and then added
two other illustrations in which the Prophet acted in his capacity as
imam. One of these was the division of the land of Khaybar among
the conquerors. The Prophet considered this to be the best course of
action to take at the time, but then he did not order the same on the
conquest of Mecca. Instead the Prophet left the properties of the resi-
dents of Mecca untouched as this was seen to be one way of winning
their hearts and support for Islam. Apparently the Jews of Khaybar
could not be expected to do the same. The next example given is the
hadith in which the Prophet lifted the ban he had earlier imposed on
the storage of sacrificial meat during the ‘Ii Festival of Adb3. The ban
was initially imposed because of the large crowds that were coming to
the hajj, but then later he lifted the ban when it was no longer needed
In both events, the Prophet acted in his capacity as imam.

Ithas been observed that the Prophet might have uttered the hadith
which entitles the warrior to the belongings of his victim in order to
encourage the Companions to do jihad in the light of the then prevail-
ing circumstances, The circumstances may have been such that an
incentive of this kind was required; or, perhaps, it was intended to
lay down a general law without any regard for particular situations.
According to Imam Shafi‘, the hadith under consideration lays down
a general rule of Shariah, For this is the general norm in regard to
the Sunnah, The main purpose of the Prophet's mission was to lay
down the foundations of the Sharf‘ah and, unless there is an indication
to the contrary, one must assume that the purpose of the hadith in
general is to lay down general law.

(3) Sunnah which originates from the Prophet in his capacity as 2
judge in particular desputes usually consists of two parts: the part which
relates to claims, evidence and factual proof, and the judgement which
is issued as 2 resule. The fit past is situational and does not constitute
general law, whereas the second part ys down general law, with the
proviso, however, that it does not bind the individual directly, and no-
one may act upon it without the prior authorisation of a competent
Jadge. Since the Prophet himself acted in a judicial capacity, the rules
that he has enacted munt therefore be implemented by the office of the
adi. Hence when a person has a claim over another which the latter
denies, bot che clasmant knows of a simular dispute which the Prophet
has adjudicated in a certain way, this would not entitle the claimant
to take the bw isto his own hands. He must follow proper procedures
to prove his claim and to obtain a judicial decision.”

To distinguish the legal from noa-legal Sunnah, it is necessary for
the mujtakid to ascertain the anginal purpose and context in which 2
particular ruling of the Sunmak has been issued and whether it was
designed to exablish a general rule of law. The hadith literature does
not always provide clear information on the different capacities sn
which the Prophet might have acted in particular situation, although
the muyjtahid may find indicanons that assist him to some extent. The
absence of adequate information and critena on which to determine
the circumstantial and non-legal Sunnah from that which constitutes
general law dates back to the tume of the Companions. The difficulty
has persisted ever since, and it ts mainly due to the shortage of adequate
information that disagreement has aren among the ‘wlama’ over the
undeneanding and interpretation of the Sunnah.”

To give another example, juriec duagreement has ansen concern-
ing a hadith on the reclamation of barren land which reads, ‘Whoever
reclums barren Lind becomes its owner’.”

oS bite Lal gol ey

The ‘wlami” have differed a» to whether the Prophet uttered this
hadith in his capacity as prophet or in his capacity as head of state. If
the former is esablished to be the ease then the hadith lays down
binding rule of law. Anyone who reclaims barren land becomes its
‘owner and need nce obtain any permission from the imam or anyone
chse, for the hadith provides the necesary authority and there would
be no need for official If, on the other hand, it is estab-
ished that the Prophet attered this hadith in his capacity 2s imam,

74 PRINCIPLES OF ISLAMIC JURISPRUDENCE

then it would imply that anyone who wishes co reclaim barren land
must obtain the prior permission of the imam or anyone else. The
hadith, in other words, only entitles the imam to grant the citizen the
right to reclaim barren land, The majority of jurists have adopted the
first view whereas the Hanafis have held the second. The majority of
jurists, including Imams al-Shifi'i, Malik and Abo Yasuf, have held
that the consent of the state is not necessary for anyone to commence
reclaiming barren land, especially when no one is harmed by it. But
it appears that jurists and scholars of the later ages prefer the Hana
view which stipulates that reclaiming barren land requires the consent
of the state, The Hanafl view is based on the rationale of preventing
disputes among people. The Milikis on the other hand only require
government consent when the land is close to a human settlement, and
the Hanbalis only when it has previously been alienated by another
person."!

Disagreement has also arisen with regard to the hadith that adjudi-
cated the case of Hind, the wife of Abd Sufyin. Hind complained to
the Prophet that her husband was a tight-fisted man and that, despite
his affluence, he refused to give adequate maintenance to her and her
child. The Prophet instructed her to ‘take [of her husband’s property]
what is sufficient for yourself and your child according to custom’.

wD y ally Sigg HhiSy Le cgdise

The ‘wlama" have disagreed as to whether the Prophet uttered this
hadith so as to enact a general rule of law, or whether he was acting
in the capacity of a judge. Were it admitted that the hadith consists of
a judgement addressing a particular case, then it would only authorise
the judge to issue a corresponding onder, Thus it would be unlawful
for a creditor to take his entitlement from the property of his debtor
without a judicial order, If it were established, on the other hand, that
the hadith lays down a general rule of aw, then no adjudication would
be required to entitle the wife or the creditor to the property of the
defaulting debtor, as the hadith itself would provide the necessary
authority. If any official permission is required, then it would have
to be in the nature of a declaration or clearance only.**

The Hanafls, Shafi'ls and Hanbalis have held that when a man
who is able to support his wife wilfully refuses to do so, it is for the
wife to take action and for the gigi to grant a judgement in her
favour, Ifthe husband still refuses to full his duty, the gid may order
the sale of his property from whose proceeds the wife may obtain her

The Sunnah 75

maintenance. The court may even imprison a persistently neglectful
husband. The wife is, however, not entitled to a divorce, the reason
being that when the Prophet instructed Hind to take her maintenance
from her husband's property, she was not granted the right to ask for
a divorce. The Malikis are basically in agreement with the majority
view, with the only difference that in the event of the husband's
persistent refusal, the Milikis entitle the wife to ask for a divorce.
Notwithstanding some disagreement as to whether the court should
determine the quantity of maintenance on the basis of the financial
status of the husband, the wife, or both, according to the majority
view, the husband's standard of living should be the basis of the court
decision. Thus the ‘lama’ have generally considered the hadith under
consideration to consist of a judicial decision of the Prophet, and as
such it only suthorises the judge to adjudicate the wife's complaint
and to specify the quantity of maintenance and the method of its
payment.

We also note that some of the Prophetic hadith took into consider-
ation the prevailing custom of Arab society at the time, and a correct
understanding of such hadith rulings would require that they are read
in that context. Some of the hadith on the subject of usury (ribd’), for
example, refer to commodities, especially wheat, barley and dates as
measurable commodities that were sold by measurement, not weight
Later, when there was a change in the custom of society, the same items
were consequently sold by weight and this was duly acknowledged
by some ‘ulama’, including AbO Yosuf, who was of the view that the
distinction between whether an item was measurable (kaylt) or sold by
weight (waznf) was to be made by reference to the prevailing custom.
But in saying so, AbO YOsuf departed from the views of Imam AbO
Hanifah, who had earlier held that the prophetic characterisation of
these items within the one category of the other was permanent and
unchangeable. If the Prophet had identified wheat or dates as kayll,
they must remain as such for all time, regardless of customary change.
But the correct view, as al-Qaradaw! has observed, is that of Aba
Yosuf.

‘A more explicit example of Sunnah that is predicated on ‘wrf is the
determination of the quorum of zakah in gold and silver, which were
fixed at twenty dinars (about 85g) and two hundred dirhams (595g)
respectively. One dinar in those days was equivalent co ten dirhams.
The point to note here is that the Prophet had not meant to enact
two different quorums for’zakdh, but to establish valid and objective
standards by which poverty and wealth can be distinguished for the

76 PRINCIPLES OF ISLAMIC JURISPRUDENCE

purpose of zakdh, If we were to isolate the rulings of Sunnah from its
underlying context and ‘wf, and take a literal approach to enforcing
them, this may amount to distortion. This is due to the considerable
change that has taken place in the basic value of gold in relation to
silver, Surely, in judging a person's liability to zakah we must refer
to current economic conditions. Can we, in other words, say that a
person who now owns eighty five grams of gold, or its equivalent in
silver, is wealthy? The question has been raised by AbO Zahrah and
‘Abd al-Wahbib Khallif, as also recounted al-~Qaradawi, and they all
take the view that a uniform quorum should now be determined in
gold (but not in both gold and silver) that would realistically determine
a person's liability to zakih by reference to the prevailing economic
conditions. Similar suggestions have been made in regard to the
quantities of diyah (blood money) and other relevant issues.

And lastly we note that some hadith are worded in the form of
general (‘dmm) rulings but they actually convey a specific (lehdss) ruling,
A correct understanding of such hadith would require that they are not
to be generalised but read in proper context. An example of this is the
hadith concerning the recommended toilet behaviour, particularly in
respect of the direction in which one sits or urinates, The instruction
here reads: ‘Face not the giblah when you pass a motion or urinate,
nor should you tum your back to the giblah, Face either the east or
the west.’

gpd Vy Sy Vy tatly aLall Lylies y
ra

Aye HN Sy
Al-Bukhari has quoted this and Ibn Hajar, the commentator of al-
Bukhisi, has rightly stated that some people have taken this hadith
literally, which is obviously erroneous. The hadith, although generally
worded, is only addressed to the people of Medina, but people in
such places like Egypt and Libya or Morocco would have actually
acted contrary to the purpose of the hadith, if they face eastwards. For
a similar example, we also note the hadith, again recorded in both al-
Bukhiri and Muslim, on the authority of Nag ibn "Umar, where the

Prophet said that ‘fever — or high fever — is a portion of Hell, so cool
it down with water’

Al Leo pb pig cd oe abl St gf att Uy

The Sunnah 77

This hadith has puzzled specialists in medicine and some have con-
sidered it contrary to the treatment they would advise for high fever.
Once again the hadith here, although convened in general terms,
must be read in the context of the particular climate and
factors.”

ther related

‘Sunnah which consists of general legislation often has the quality of
permanence and universal application to all Muslims, Sunnah of this
type usually consists of commands and prohibitions which are related
to the Qur'an in the sense of endorsing, elaborating or qualifying the
general provisions of the Holy Book.””

11.1 Qur'an and Sunnah Distinguished

The Qur'an was recorded in writing from beginning to end during
the lifetime of the Prophet, who ascertained that the Qur'in was
preserved as he received it through divine revelation. The Prophet
clearly expressed the concern that nothing of his own Sunnah should
be confused with the text of the Qur'in. This was, in fact, the main
reason why he discouraged his Companions, at the early stage of his
mission in any case," from reducing the Swinah into writing lest it
be confused with the Qur'in. The Sunnah, on the other hand, was
mainly retained in memory by the Companions who did not, on the
whole, keep a written record of the teachings of the Prophet. There
were perhaps some exceptions as the relevant literature suggests that
some, though a small number, of the Companions held collections
of the hadith of the Prophet which they wrote and kept in their
private collections. The overall impression, however, is that this was
done on a fairly limited scale.

Ieis reported that ‘Abd Allah ibn ‘Ame ibn al~'As said chat, ‘I used
to write everything I heard from the Mesenger of Allah for my
collection, but then the Quraysh advised me not to do so and said,
“You write while the Messenger of God may be saying something
in a state of anger!” Then I stopped antil 1 mentioned this to the
messenger of God and he said: "Write. By the One in whose hands
my life reposes, I say only the truth” and he pointed his finger to me
while saying so.’ ‘Abd Allsh ibn ‘Amr ibn al-‘As used to call his
collection ‘al-sahifah al-sddiqah’, Other Companions who wrote hadith
includes ‘Abd Allsh ibn Mas‘dd and Sa‘d ibn “Ubadah, There is also
a report that the Companion Aba Shih asked the Prophet for permis-
sion to write and the Prophet granted his request.” It thus appears that
the Prophet initially ordered the Companions not to write anything

78 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Sunnah 79

other than the Qur’in, bur then, at a time perhaps when most of the
Qur'tn had been received and documented, the Prophet permitted
his teachings to be put into writing,

The Companions were generally assiduous in seeking and dissemi-
nating the teachings of the Prophet. Al-Bukhiri recorded the report
in which “Umar ibn al-Khattib stated: ‘I had a neighbour from the
Angir in Medina and we used to take tums in attending to the
Messenger of God. He would attend one day and I would the next
T would tell him of the events of the day I attended and he would do
the same."

The Companions used to verify instances of doubt concerning the
text of the Que’dn with the Prophet himself, who would often clarify
them through clear instruction. This manner of verification is, how
ever, unknown with regard to the Sunnah.”

The entire text of the Qur'in has come down to us through
continuous testimony (tawitur) whereas the Sunnah has for the most
part been narrated and transmitted in the form of solitary, or dhdd,
teports. Only a small portion of the Sunnah has been transmitted in
the form of mutauitr.

The Qur'an in none of its parts consists of conceptual transmission,
that is, transmission in the words of the narrator himself, Both the
concepts and words of the Qur'ln have been recorded and transmitted
as the Prophet received them. The Sunnah on the other hand consists,
in the most part, of the transmission of concepts in words and sentences
that belong to the narrators. This is why one often finds that different
versions of the one and the same hadith are reported by people whose
understanding or interpretation of a particular hadith 1s not identical
The scope of ikhtildf, or disagreement, over the Sunnah is more exten~
sive than thar which may exist regarding the Qur'an. Whereas the
‘ulama’ have differed in their understanding/interpretation of the text
of the Qur'an, there is no such problem concerning the authenticity
of the contents of the Qur'an. But disagreement over the Sunnah
extends not only to questions of interpretation but also to authenticity
and proof, issues on which we shall further elaborate as our discussion
proceeds.

IL.2 The Priority of the Qur’in over the Sunnah

As Sunnah is the second source of the Shari'ah after the Qur’in, the
mujtahid is bound to observe the order of priority between the Qur'in
and Sunnah, Hence in his search for a solution to a particular problem,

the jurist must resort to the Sunnah only when he fails to find any
guidance in the Qur'an. Should there be a clear text in the Qur'in,
it must be followed and be given priority over any ruling ofthe Sunnah
which may happen to be in conflict with the Qur'an. The prionty
of the Qur'an over the Sunnah is partly a result of the fact that the
Qur'an consists wholly of manifest revelation (wahy ahir) whereas
the Sunnah mainly consists of intemal revelation (wahy hatin) and is
largely transmitted in the words of the narrators themselves. The other
reason for this order of priority relates to the question of authenticity.
The authenticity of the Qur'an is not open to doubt. It is, in other
words, gaff, or decisive, in respect of authenticity and must there-
fore take priority over the Sunnah, or at least that part of Sunnah
which is speculative (zannf) in respect of authenticity. The third point
in favour of establishing an order of prionty between the Qur'an and
the Sunnah is that the latter is explanatory of the former. Explanation
or commentary should naturally occupy a secondary place in relation-
ship to the source. Furthermore, the order of priority between the
Qur'in and Sunnah is clearly established in the hadith of Mu'adh ibn
Jabal quoted earlier. The purport of this hadith was also adopted and
communicated in writing by “Umar ibn al-Khawtab to wo judges,
Shurayb ibn Hirith and Abd Masi al-Ash‘arl, who were ordered to
resort to the Qur'in first and to che Sunnah only when they could
find no guidance in the Qur'an.

A practical consequence of this order of priority may be seen in
the Hanafi distinction between fard and wiyjib. The former is founded
on the definitive authority of the Qur'dn, whereas the latter is
founded on the definitive Sunnah, but is one degree weaker because
of 2 possible doubt in its transmission and accuracy of content, These
are some of the factors that explain the general agreement of the
Sulamii” to the effect that the authority of the Qur'an overrides that
of the Sunnah.

There should in principle be no conflict between the Qur'an and
the authentic Sunnah. If, however, a conflict is seen to exist between
them, they must be reconeiled as far as possible and both should be
retained. If this is not possible, the Sunnah in question is likely to be
of doubeful authenticity and must therefore give way to the Qur'in.
No genuine conflict is known to exist between the mutawitir hadith
and the Qur'an. All instances of conflict between the Sunnah and the
Qur'an, in fact, originate in the solitary, or asad, hadith, which are in
any case of doubtful authenticity and subordinate to the overriding
authority of the Qur'sn.

§0 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Sunnah 81

It has, however, been suggested that establishing such an order of
priority is anomalous and contrary to the basic role that the Sunnah
plays in relation to the Qur’in, As the familiar Arabic phrase, attributed
to Imam Aba ‘Amr al-Aw23‘i, ‘al-Sunnah gddiyah ‘ala al-kitdb’ (Sunnah
is the arbiter of the Qur'an) suggests, it is normally the Sunnah which
explains the Qur'an, not vice versa. The fact that the Sunnah explains
and determines the precise meaning of the Qur’in means that the
Qur'in is more dependent on the Sunnah than the Sunnah is on the
Qur'in."” In the case, for example, where the text of the Qur'in
imparts more than one meaning, or when it is conveyed in general
terms, it is the Sunnah that specifies the meaning that must prevail.
Again, the manifest (zahir) of the Qur’in may be abandoned by the
authority of the Sunnah, just as the Sunnah may qualify the absolute
(mulag) in the Qur’in. The Qur’in on the other hand does not play
the same role with regard to the Sunnah. It is not the declared purpose
of the Qur'sn (o explain of clarify the Sunnah, as this was done by the
Prophet himself. Since the Sunnah explains, qualifies, and determines
the purport of the Qur'an, it must take prionty over the Qur'an, If
this is admitted, it would follow that incidents of conflict between
the Que’in and Sunnah must be resolved in favour of the latter. Some
‘ulama' have even advanced the view that the hadith of Mu‘idh ibn
Jabal (which clearly confirms the Qur’n’s priority over the Sunnah)
is anomalous in that not everything in the Qur’in is given priority
over the Sunnah." For one thing, the mutawitir hadith stands on the
same footing as the Qur'dn itself. Likewise, the manifest (zdhi#) of the
Qur'n is open to interpretation and jjtihdd in the same way as the
solitary, or dhad, hadith; which means that they are more or less equal
in these respects. Furthermore, according to the majority opinion,
before implementing a Que'dnic rule one must resort to the Sunnah
and ascertain that the ruling in question has not been qualified in. any
Way or given an interpretation on which the text of the Qur’in is
not self-evident.”

In response to the assertion that the Sunnah is the arbiter of the
Quin, it will be noted, as al-Shatibl points out, chat this need not
interfere with the order of priority in favour of the Qur’in. In all cases
where the Sunnah specifics or qualifies the general or the absolute
terms of the Qur'an, the Sunnah in effect explains and interprets the
Quin. In none of these instances is the Qur’in abandoned in favour
of the Sunnah, The word qadiyah (arbiter) in the expression quoted
above therefore means mubayyinah (explanatory) and does not imply
the priority of the Sunnah over the Qur'an. This is, in fact, the

response that the phrase prompted from Imam Ahmad ibn Hanbal,
who is on record to have stated somewhat angrily, ‘How impudent
to say that the Sunnah explains and clarifies the Book.’ The textual
rulings of the Qur'an concerning theft and the obligation of zakah
have, for example, been qualified by the Sunnah. However, it is only
proper to say that in both these cases, the Sunnah elaborates the
general rulings of the Qur'an, and it would hardly be accurate to
suggest that the Sunnah has introduced anything new, of that it seeks
to overrule the Qur'an. When an interpreter explains a particular
legal text to us, it would hardly be correct to say that we act upon
the words of the interpreter without referring to the legal text
itself.”

Furthermore, che explanatory role of the Sunnah in relation to the
Qur'in has been determined by the Qur'3n itself, where we read in
an address to the Prophet in sOra al-Nahl (16:44); “We have sent down
to you the Remembrance so that you may explain to the people what
has been revealed to them,"

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The correct conclusion drawn from this and similar Qur’Snic passages
is that the Sunnah, being explanatory to the Qur'an, is subordinate
to it.”

11.3 Is Sunnah an Independent Source?

‘An adequate answer to the question as to whether the Sunnah is a
mere supplement to the Qur'in of a source in its own right necessi-
tates an elaboration of the relationship of the Sunnah to the Qur'an
{in the following three capacities.

Finsly, the Sunnah may consist of rules that merely confirm and
reiterate the Qur'in, in which case the rules concemed originate in the
Qor'in and are merely corroborated by the Sunnah, The question as
to whether the Sunnah is an independent source is basically redundant
with regard to matters on which the Sumah merely confirms the
Qur'an, as it is obvious that in such cases the Sunnah is not an inde~
pendent source. A substantial part of the Sunnah is, in fact, of this
variety: all hadith pertaining to the five pillars of the fhith and other
such matters like the rights of one’s parents, respect for the property of
others, and hadith which regulate homicide, theft and false testimony,
etc., basically reaffirm the Qur’3nic principles on these subjects.” To

82 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Sunnah 83

be more specific, the hadith that ‘it is unlawful to take the property
of a Muslim without his express consent’?!

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merely confirms the Qur'Jnic dyak which order: the Muslims to
‘devour not each others’ properties unlawfully unless [or ‘even if’,
according to a variant reading] it is through trade by your consent
(al-Nisa’, 4:29).

Sy Soe Sia Kiya LISTE NyeaT ool Gal
Sr als ge aE OS al

The origin of this rule is Quranic, and since the foregoing hadith
merely reaffirms the Qur'in, there is no room for saying that it consti
tutes an independent authority in its own right.

Secondly, the Sunnah may consist of an explanation or clarification
of the Que'in; it may clarify the ambivalent (mujmal) of the Qur'an,
qualify its absolute statements, or specify the general terms of the
Qur'dn. This is, once again, the proper role that the Sunnah plays in
relation to the Qur'an: it explains it. Once again, a substantial part of
the Sunnah falls into this category. It is, for example, through this type
of Sunnah that Que’Sinic expressions such as salah, zakih, bajj and riba,
etc., have acquired their juridical (shar'f) meanings. To give another
example, with regard to the contract of sale, the Qur’in merely declares
sale to be lawful, as opposed to ribd, which is forbidden. This general
principle has later been elaborated by the Simnah, which expounded
the detailed rules of Shari'ah concerning sale, including its conditions
and varieties, and sales which might amount to riba’. The same could
be said of the lawful and unlawful varieties of food, a subject on which
the Qur'an contains only general guidelines while the Sunnah specifies
them and provides the details." The Sunnah in this way specifies the
general (‘dmm) of the Qur'an, Note, for example, that the Qur’Snic
command on fasting ‘so every one of you who is present during that
month should fast’ (al-Bagarah, 2:185)

aaa ptt Sin ted on

has been specified by the hadith which exonerated three categories of
people from this (and other laws of Sharf‘ah). These are the minors,

the insane and the persons asleep until they wake up. Similarly, the
Qur'in. declared sale permissible but usury unlawful (al-Bagarah,
2:275) but then the Sunnah specified this in respect of the sale of wet
dates for dry dates (i.¢. ‘“artyd). We note further thar the general rules
of inheritance in the Qur'in have been specified by the ruling of
hadith, which barred the killer from inheritance. The Qur'inic ruling
on the prohibition of carcasses for human consumption has also been
specified by the hadith which makes an exception in respect of fish
and locusts. The Sunnah also qualifies the absolute (mutlag) of the
Qur'an. An example of this is the Qur’dnic punishment for theft which
is conveyed in absolute terms, but then the Sunnah qualifies it and
rules that the hand should be mutilated from the wrist. On the same
subject, the Sunnah has laid down a further qualification that “there
shall be no mutilation for less than a quarter of a dinar’. Again, on the
subject of bequest, the Qur’in provides for the basic legality of bequest
and the rule that it must be implemented prior to the distribution of
the estate among the heirs (al-Nisi’, 4:12). The Sunnah supplements
these principles by providing additional rules which facilitate a proper
implementation of the general principles of the Qur'an,”

The foregoing two varieties of Sunnah between them comprise the
largest bulk of Sunnah, and the ‘ulama’ are in agreement that these
two types of Sunnah are integral to the Qur'an and constitute a logical
whole with it. The two cannot be separated or taken independently
from one another, It is considered chat the Sunnah that qualifies or
claborates the general provisions of the Qur’3n on devotional matters
(‘ibada), on the punishment for theft, on the duty of zakdh and on the
subject of bequests, could only have originated in divine inspiration
(ithdm), for these cannot be determined by means of rationality and
‘ytihad alone.”

Thirdly, the Swnnah may consist of rulings on which the Qur'an
is silent, in which case the ruling in question oniginates in the Sunnah
itself. This variety of Sunnwh, referred to as al-Sunnah al-mu’assisah, or
“founding Sunnah’, neither confirms nor opposes the Qur'an, and its
contents cannot be traced back to the Holy Book. It is only this
variety of Sunnah that lies at the centre of the debate as to whether
‘of not the Sunnah is an independent source of law. To give some
examples: the prohibition regarding simultaneous marriage to the
maternal and paternal aunt of one’s wife (often referred to as ‘unlaw-
ful conjunction’), adjudication on the basis of one witness plus an
cath by the claimant, the charity known as sadagah al-fiyr the payment
of bload-money (diya) by the kinsinen (‘agild), prohibition of the

84 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Sunnah 8%

flesh for human consumption of certain animals and birds, the right
of pre-emption (shuf), the grandmother's entitlement to a share in
inheritance, the punishment of rajm, that is, death by stoning for
adultery when committed by a married Muslim ~ all originate in the
Sunnah as the Qur'an itself is silent on these matters. y

There is some disagreement among jurists as to whether the Sunnah,
or this last variety of it at any rate, constitutes an independent source
of Shari ah. Some ‘ulama’ of the later ages (al-muta’ akhkehinin), includ-
ing al-Shitibl and al-Shawkini, have held the view that the Sunnah
is an independent source. Al-Shawkant has stated that the rulings of
Sunnah on the subject of the lawful and unlawful are equivalent to
those of the Qur'an. He then quotes the hadith of the Prophet ‘I have
indeed been given the Qur'an and the like of it with it." The Prophet
ded the Sunnah as the like (mithi) of the Que’Sn.

in other words, re

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It is also suggested that the Qur’dnic ayah in sOra al-Nabl (16:44),
quoted above, is inconclusive and that, despite its being clear on the
point that the Prophet interprets the Qur’tn, it does not overrule the
recognition of the Sunnah as an independent source. On the contrary,
it is argued that there is evidence in the Que'3n chat substantiates the
independent status of Sunnah, The Qur'an, for example, in more than
one place requires the believers to ‘obey God and obey His Messenger’
(al-Nisa', 4259; al-Ma'idah, $:92)

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The fact that obedience to the Prophet is specifically enjoined next
to obeying God warrants the conclusion that obedience to the Prophet
means obeying him whenever he orders or prohibits something on
which the Qur'in might be silent. If the purpose of obedience to the
Prophet were to obey him only when he explained the Qur'an, then
‘obey God’ would be sufficient and there would have been no need
to add the phrase ‘obey the Messenger’.”” Elsewhere the Qur’sn clearly
places submission and obedience to the Prophet at the very heart of
the faith as a test of one’s acceptance of Islam. This is the purport of
the dyah which reads: “By your Lord, they will not believe till hey
make you the judge regarding disagreements between them, and find
in themselves no resistance against the verdict, but accept it in full
submission” (al-Nisi’, 4:65).

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Furthermore, the proponents of the independent status of the Sunnah
have quoted the hadith of Mu‘idh ibn Jabal in support of their
argument. The hadith is clear on the point that the Sunnah is authori~
tative in cases on which no guidance can be found in the Qur'in. The
Sunnah, in other words, stands on its own feet regardless of whether
it is substantiated by the Qur’in or not."

According to the majority of ‘ulamd’, however, the Sunnah, in all
its parts, even when it enacts original legislation, is explanatory and
integral to the Qur'an." Al-Shafi'l's views on this matter are repre~
sentative of the majority position. In his Résilah, al-Shifi'l states:

1 do nor know anyone among the ‘wlamd” w oppure [the doctrine] that the Siamnal
of the Prophet is of three types: first & the Sunnah which prescribes the like af
what God has revealed in His Book, next 1 the Swnuah which explain the general
principles of the Qur'tn and clariies the wil of God; and last is the Sunnah where
the Messenger of God has ruled on mutters on which nothing cay be found in
the Book of God. The first pwo varieties ate integral to the Que'én, but the ‘ulumd”
have differed a9 wo the third. **

Al-Shafi't goes on to explain the views that the ‘ulama’ have advanced
conceming the relationship of Sunnah to the Qur'an. One of these
views, which receives strong support from al-Shafi't himself, is that
God has explicitly rendered obedience to the Prophet an obligatory
duty (fard). In his capacity as Mewsenger of God, the Prophet has
introduced laws, some of which originate in the Qur'an while others
do not. But all Prophetic legislation emanates from divine authonty
The Sunnah and the Qur'an are of the same provenance, and all must
be upheld and obeyed. Others have held the view that the Prophetic
mission itself, that is the fact that the Prophet is the chosen Messenger
of God, is sufficient proof for the authority of the Sunnah, for it is
through the Sunnah that the Prophet fulfilled his divine mission.
According to yet another view, there is no Sunnah whose origin
cannot be traced back tw the Qur'an. This view maintains that even
the Sunnah that explains the number and content of salah and the
quantities of zakah, as well as the lawful and forbidden varieties of
food and trade, metely elaborates general principles of the Qur'an.”
More specifically, all the hadith which provide details on the lawful

86 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Sunnah 87

Inic decl-

and unlawful varieties of food merely elaborate the Qui
ration that God has permitted wholesome food and prohibited that
which is unclean (al-A‘raf, 7:157)."

The majority view, which seeks to establish an almost total identity
between the Sunnah and the Qur'an, further refers to the saying of
the Prophet's widow, ‘A’ishah, when she attempted to interpret the
Qur'inic epithet ‘and you possess an excellent character’ (al-Qalam,
68:4)

pe gle Gd why

Niishah is quoted to have said that ‘his [the Prophet's} kludhug was
the Qur'an’. Khulug in this context means the conduct of the Prophet,
his acts, sayings, and all that he has approved. Thus it is concluded
that the Sunnah is not separate from the Qur’in."

Furthermore, the majority view seeks to establish an identity
between the nah
and the Qur'an are unanimous in their pursuit of the three-fold
objectives of protecting the necessities (Janinyyd), complementary
requirements (hijiyyat) and the ‘embellishments’ (tabsiniyyat)."* Ie is
then argued that even when the Sunnah broaches new ground, it is
with the purpose of giving effect to one or other of the objectives
that have been validated in the Que’in, Thus the identity between
the Qur'in and Sunnah is transterred, from one of theme and subject,
to that of the main purpose and spinit that is common to both.”

And finally, the majority explain that some of the rulings of the
Sunnah consist of analogies with the Qur'in. For example, the Qur'an
has decreed that no one may marry two sisters simultaneously. The
hadith which prohibits simultaneous marriage to the maternal and
paternal aunt of one's wife is based on the same effective cause (‘illal),
which is to avoid the severance of close ties of kinship (gat al-arbam)
In short, the Sunnah as a whole is no more than a supplement to the
Qur'in. The Qur'an is indeed more than comprehensive and provides
complete guidance on the broad outline of the entire body of the
Shar ah.

In conclusion, it may be said that both sides are essentially in agree-
ment on the authority of Sunnah as a source of law and its principal
role in relation to the Qur'in. They both acknowledge that the
Sunnah contains legislation which is not found in the Qus'an.” The
difference between them seems to be one of interpretation rather
than substance, The Qur'Snic ayar on the duty of obedience to the

eneral objectives of the Qur’in and Sunnah: the

Propher, and those which assign to him the role of the interpreter of
the Qur’in, are open to vanant interpretations. These passages have
been quoted in support of both views, that the Sunnah is supple-
mentary to the Qur’in, and that it is an independent source. The
point that is basic to both these views is the authonity of the Prophet
and the duty of adherence to his Sunnah. In the meantime, both sides
acknowledge the fact that the Sunnah contains legislation which is
additional to the Qur'an, When this is recognised, the rest of the
debate becomes largely redundant. For what else is there to be achieved
from the argument that the Sunnah is an independent source? The
partisans of the two views have, in effect, resolved their differences
without perhaps declaring this to be the case, Since the Qur'in
provides ample evidence that the Prophet explains the Qur'an and
that he must be obeyed, there is no need to advance a theoretical
conflict between the two facets of a basic unity. Both views can be
admitted without the risk of running into a logical contradiction;
the two views should therefore be seen not as contradictory but as
logical extensions of one another

Il.4 Distortion and Forgery

There is no dispute about the occurrence of extensive forgery in the
hadith literature. The ‘wlamd’ of hadith are unanimous on this, and
some have gone so far as to affirm that in no other branch of Islamic
sciences has there been so much forgery as in hadith. The very
existence of a bulk of literature and works by prominent ‘ulama' bear-
ing the title al-Mawdi'dt, or ‘fabricated hadith’, bears witness to the
extensive forgery in this area.”

Some disagreement, however, has arisen in determining the
historical origins of forgery in hadith, While some observers have given
the caliphate of “Uthman as a starting point, others have dated it a little
later, at around the year 40 Hijrah, when political differences between
the fourth caliph, ‘All, and Mu‘Swiyah led to military confrontation
and the division of the Muslims into various factions, According to
a third view, forgery in hadith started even earlier, that is, during the
caliphate of Aba Bakr when he waged the War of Apostasy (riddal)
against the refusers of zakh. But the year 40 is considered the more
likely starting point for the development of serious and persistent
differences in the community, which is marked by the emergence of
the Kharijites and the Shi‘ah. Muslims were thenceforth divided, and
hostility berween them acquired a religious dimension when they

88 PRINCIPLES OF ISLAMIC JURISPRUDENCE

began to use the Qur'an and Sunnah in support of their claims. When
the misguided elements among them failed to find any authority in
the sources for their views, they either imposed a distorted interpre-
tation on the source materials, or embarked on outright fabrication.”

The attribution of false statements to the Prophet may be divided
into two types: (1) deliberate forgery, which is usually referred to as
hadith mawda'; (2) unintentional fabrication, which is known as hadith
bapil and is due mainly to error and recklessness in reporting. For
example, in certain cases it is noted that the chain of narrators ended
with a Companion or a Successor only, but the transmitter extended
it directly to the Prophet. The result is all the same, and fabrication
whether deliberate or otherwise must in all cases be abandoned.” Our
present discussion is, however, mainly conceed with deliberate

fabrication in hadith,

The initial forgery in hadith is believed to have occurred in the
context of personality cult literature (fadi?'il al-ashkehdy) which aimed
at crediting (or discrediting) leading political figures with exaggerated
claims. The earliest forgery in this context, according to the Sunnis,
was committed by the Shi‘ah. This is illustrated by the hadith of
Ghadir Khumm in which the Prophet is quoted to have said, “All is
my brother, executor and successor. Listen to him and obey him.” A
similar statement attributed to the Prophet is as follows: “Whoever
wishes to behold Adam for his knowledge, Noah for his piety,
Abraham for his gentleness, Moses for his commanding presence and
Jesus for his devotion to worship — let him behold ‘Al."”

There are numerous fabricated hadith condemning Mu‘Swiyah,
including, for example, the one in which the Prophet is quoted to
have ordered the Muslims, ‘When you see Mu'iwiyah on my pulpit,
kill him.’ The fanatic supporters of Mu‘awiyah and the Umayyad
dynasty are, on the other hand, known to have fabricated hadith such
as “The trusted ones are three: I, Gabriel and Mu‘iwiyah.™

The Khinjites are on the whole considered to have avoided fabri-
cating hadith, which is due mainly to their belief that the perpetrator
of a grave sin is no longer a Muslim. Since they saw the fabrication
of hadith in this light, they avoided indulgence in forgery as a matter
of principle and a requirement of their doctrine.” A group of heretic
factions known as Zanadigah (pl. of zindiq), owing to their hatred of
Islam, fabricated hadith which discredited Islam in the view of is
followers, Included among such are: ‘Eggplants are a cure for every
illness’ and ‘Beholding a good-looking face is a form of ‘ibidah’. It
is reported that just before his execution, one of the notorious

The Swnnah 89

fabricators of hadith, ‘Abd al-Karim ibn Abt al-‘Awja’, confessed that
he had fabricated 4,000 hadith in which haldl was rendered hard and
barim was rendered halal, It bas been further reported that the
Zanddigah fabricated a toral of 14,000 hadith,” a report which may or
may not be credible. For a statement of this nature tends to arouse
suspicion as to its veracity: even in fabricated matters, it is not an easy
task to invent such a vast number of hadith on the subject of halal and
hardm. Perhaps exaggerated figures of this order were quoted mainly
for their subversive value

Racial, tribal and linguistic fanaticism was yet another context in
which hadith were fabricated. Note, for example,. the following:
"Whenever God was angry, He sent down revelation in Arabic, but
when contented, He chose Persian for this purpose.’ The Atab fanatic
also matched this anathema by claiming that ‘whenever God was angry
he sent down revelation in Persian, but when contented He chose to
speak in Arabic’. These and other similar forgeries relating to the
virtues or superiority of certain mbes, cities, and periods of time over
others have been isolated by the ‘wlama’ of hadith and placed in the
category of al-maudil' ar."

Known among the clases of forgers are also professional story-
tellers and preachers (al-gussdy uxi-ust igi), whose urge for popularity
through arousing an emotional response in their audience led them
to indulge in forgery. They made up stones and attributed them to
the Prophet. Ie is reported that once a story-teller cited a hadith to an
audience in the mosque on the authority of Abmad ibn Hanbal and
Yaby ibn Ma‘in which runs as follows: "Whoever says "There is no
god but God", God will reward him, for each word uttered, with a
bird in Paradise, wich a beak of gold and feathers of pearls.’ At the end
of his sermon, the speaker was confronted by Alsmad ibn Hanbal and
Yabya’ ibn Ma‘in who were present on the occasion and told the
speaker that they had never related any hadith of this kind.”

Juristic and theological differences constitute another theme of
forgery in hadith. This is illustrated by the following statement attb-
uted to the Prophet: "Whoever raises his hands during the performance
of salah, his salah is null and void." In yet another statement we read:
"Whoever says that the Que'3n is the created speech of God becomes
an infidel [...] and his wife stands divorced from him as of chat
moment.’

Another category of fabricated hadith is associated with the religious
zeal of individuals whose devotion to Islam led them to the careless
ascription of hadith to the Prophet. This is illustrated by the forgeries

90 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Surah gt

committed by one Nah ibn Abi Maryam on the virtues of the various
sOras of the Qur’tn. He is said to have later regretted what he did and
explained that he fabricated such hadith because he saw people who
were turning away from the Qur’3n and occupying themselves with
the figh of AbO Hanifah and the batde stories of Mubammad iba
Ishaq. Numerous other names occur in the relevant literature, includ
ing those of Ghuliny Khalil and Ibn Abi ‘Ayyish of Baghdad, who
were both known as pious individuals, bur who invented hadith on
the virtues of certain words of praise (adhkdr wa-aurdd) and other

devotional n

Without wishing to go into details, other themes on which hadith
forgery has taken place include the urge on the part of courtiers who
distorted existing hadith to please and flatter their overlords. Similarly
the desire to establish the permissibility or virtue of certain varieties
of food, beverages, clothes and customary practices led individuals to
introduce exaggerations and arbitrary changes in the hadith

Just as the ‘wlama’ classified hadith into various categories in order
to identify its strength and weakness from various viewpoints, they
also identified the signs of forgery in hadith from the viewpoints
respectively of transmission (isndd) and subject-matter (matn), and these
may be summarised as follows:
(1) Signs of forgery in transmission (isndd) are identified mainly by
reference to the reputation and biography of the transmitters. There
is a wealth of literature on the names and biographies of the trans-
mitters of hadith and those who are known to have indulged in lying
and forgery. This information would normally be the first point of
reference in identifying the signs of forgery in a particular hadith,
Another useful tool in identifying forgery in the isndd is to ascertain
the time factor and dates in the transmission of hadith. This is achieved
by verifying whether the reporter has actually met the person he has
quoted as his immediate source. It is not unknown to the scholars of
hadith to discover that the two persons involved had either lived in
distant localities or that the personal contact between them was
actually impossible. When the transmitters mention, for example, that
he heard so and so in such and such a place reporting such hadith,
then the question of geographical location and of verifying the facts
as to whether they lived in the same period or generation becomes
of vital significance. ‘The branches of the science of hadith known
as ‘ilm al-tabagat (genealogy) and asma’ al-rijat (personal biographies)
pay particular attention to the dates of birth, dates of transmission,
residence and pupillage, and the information they provide is particularly

useful in tracing the signs of forgery in the narration of hadith. And
lastly, signs of forgery in transmission are also detected by reference
to personal interest and motive. An example of this is the so-called
hadith narrated by Mubammad ibn al-Hajjij al-Nakhi' which reads
that ‘cookies [al-harisah] strengthen the spine’, and al-harisah is exactly
what he used to sell

(2) Signs of forgery in the text (main) of a hadith are identified by
reference to at least seven factors as follows.

Firstly, the language of the hadith and the standards of the discourse
in which it is conveyed can sometimes provide a clue as to its veracity
Prophetic language is characteristically known for its eloquence and
style. Speech of a particularly crude variety and style is taken as a sign
of forgery.

Secondly, corruption in the purpose and meaning of a reported
hadith also provides evidence of its fabrication. The report, for
example, that “the ark of Noah circumambulated the Ka'bah at the
end’, or the report that "God created the horse and raced it fit and
then created Himself from it’ are evidently unreasonable and corrupt,
and obviously cannot be accepted.

Thirdly, statements that stand in clear opposition to the Qur'in in
such a way that no reasonable compromise and interpretation can be
attempted are usually rejected. The so-called hadith, for example, that
“the offspring of zind shall not enter paradise for seven generations’
was rejected by the Prophet's widow ‘A’ishah, as it violated the clear
text of the Qur’in that ‘no soul shall carry che burden of another soul"
(al-An‘im, 6: 164).

6A l sists F Vs

Similarly, the report “Whoever begets a child and names him
Muhammad, he and his offspring shall go to paradise’ is clearly in
conflict with numerous QurJnic promises of reward for good work
and punishment for corruption and cvil

Fourthly, a report may be unhistorical and fail to qualify the test
of historical reality. The hadith, for example, which is transmitted by
Sa'd ibn Mo'adh and Mu'awiyah that "the Prophet imposed jizyah
[poll tax} on the Jews of Khaybar and relieved them of hardship
[prospects of war)’ is discredited on account of historical facts that
jizyah was not known at that time and that the Quranic ruling on it
‘was only revealed in the year of Tabak, and that Sa‘d ibn Mu‘adh
had died before this last event. In yet another report, Anas ibn Malik

92 PRINCIPLES OF ISLAMIC JURISPRUDEN

The Sunnah 93

stated that, ‘I entered the bath and saw the Prophet wearing a wrapper
and said: © Anas, I have forbidden entry to the public bath without
a wrapper.’ The facts of history show, on the other hand, that the
Prophet never entered a public bath and that they did not exist in
Medina at the time.

Fifthly, hadith may smack of scholastic fanaticism such as the report
by Habban ibn Juwayn that ‘I heard ‘Ali saying that I and the Prophet
worshipped C
It is known that Habban was a fanatic Shi't and careless in the treat
ment of hadith

Sixthly, when a hadith is supposed to have been known to vast
numbers of people and yet only one person reported it, the fact that
no one else has confirmed it is taken as a sign of forgery. An example
of this can be found in our discussion of the ahd hadith below

And lastly, when the hadith in question promises a disproportionate
reward or an exceedingly severe punishment for a small act that does
not warrant the stipulated consequence, forgery is suspected, Note,
for example, the report ‘Anyone who says “There is no god but
God", God will create for him a bird with 70,000 tongues each of
which speaks 70,000 languages and will be praying for him."

These are some of the main, although not all, indicators of forgery
in hadith. Those who are particularly learned in hadith may be able to
detect signs of forgery in other different ways that might be peculiar
to their ability and understanding of the subject-matter of their
investigation.

od six or seven years before anyone of this Ummah.

III. Classification and Value (B)

From the viewpoint of the continuity and completeness of its chains
of transmitters, the hadith is once again classified into two categories
continuous (muttasil) and discontinued (ghayr muttagil). A continuous,
hadith is one which has a complete chain of transmission from the last
narrator all the way back to the Prophet. A discontinued hadith, also
known as mursal, is a hadith whose chain of transmitters is broken and
incomplete, The majority of ‘ulama’ have divided the continuous hadith
into the two main varieties of mutawatir and ahd. To this the Hanafls
have added an intermediate category, namely the ‘well-known’, of
mashhiir,

Ill. The Continuous Hadith

(a) The mutausitir
Literally, mutawitir means “continuously recurrent’. In the present
context, it means a report by an indefinite number of people related
in such a way as to preclude the possibility of their agreement to
perpetuate a lie. Such a possibility is inconceivable owing to their
large number, diversity of residence, and reliability." A report would
not be called mutauihr if its contents were believed on other grounds,
such as rationality and axiomatic knowledge."® A report is classified
as mutawitir only when it fulfils the following conditions.

(1) The number of reporters in every period or generation must
be large enough to preclude their collusion in propagating falsehood,
Should the number of reporters in any period fall short of a reliable
multitude, their report does not establish positive knowledge and is
therefore not mutawitir."* Some ‘wlama’ have attempted to specify a
minimum, varying from as low as four to as many as owenty, forty
and seventy up into the hundreds. All of these figures are based on
analogies. The requirement of four is based on the similar number of
witnesses that constitutes legal proof, twenty is analogous with the
Qur'dnic ayah in sdra al-Anfl (8:65) which reads: ‘If there are twenty
steadfast men among you, they will overcome two hundred {fighten)).”

cate Nyliy Oy ple Oy He pSex oS 0}

The next number, that is seventy, represents an analogy with another
Qur'Snic passage where we read that ‘Moses chose seventy men
among his people for an appointment with Us’ (al-A‘rif, 7:153).

UL ey rae 8 ey Hy

‘Some have drawn an analogy with the number of participants in the
battle of Badr. However, al-Ghazill is representative of the majority
opinion when he observes that all of these analogies are arbitrary and
have no bearing on the point. Certainty is not necesarily a question
of numbers; it is corroborative evidence, the knowledge and trust-

worthiness of reporters, which must be credited even in cases where
the actual number of reporters is not very large.'® Thus, when a
reasonable number of persons report something which is supported
by other evidence, their report may amount to positive knowledge."

(2) The reporters must base their report on sense perception. If,

94 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Sunnah 95

therefore, a large number of people report that the universe is created,
their report would not be mutawitir, The report must also be based
on certain knowledge, not mere speculation. If, for example, the
people of Islamabad inform us of a person they thought was Zayd,
‘or a bird they thought was a pigeon, neither would amount to

certainty.'""

(3) Some ‘ulama" have advanced the view that the reporters must
be upright persons (‘udill), which means that they must be neither
infidels nor profligates (kuffir wasfussig), The correct view, however,
is that neither of these cond
mutawatie is the attainment of certainty, and this can be obtained
through the reports of non-Muslims, profligates and even children
who have reached the age of discemment, that is, between seven and
fifteen. The position is, of course, entirely different with regard to
solitary hadith, which will be discussed later."

(4) The reporters should not be biased in their cause oF associated
with one another through a political or sectarian movement. And
finally, all of these conditions must be met from the origin of the
report to the very end

What is the value (hukm) of the mutawitir? According to the
majority of ‘wlama’, the authority of a mutawdtir hadith is equivalent
to that of the Qur'dn. Univeral continuous testimony. (tauinur)
cngenders certainty (yayin) and the knowledge that it creates is equiv=
alent to knowledge that is acquired through sense-perception. Most
people, itis said, know their forefathers by means of mutauitir reports
just as they know their children through sense-percepnon. Similarly,
no one is likely to deny that Baghdad was the seat of the caliphate for
centuries, despite their lack of direct knowledge to that effect. Accord-
ing to a minority view, mutauiltir imparts satisfaction (juma'ninah) but
not yagin, which means that doubt is not totally eliminated. It is then
noted that a mutausitir consists of a multitude of ahad put together,
and each of the ahdd, if taken individually, is liable to doubt. The
element of doubt, in other words, in not eliminated. Abi. Zahrah
observed that the basic logic of this view finds support in actual reality
as we do find untrue reports are sometimes transmitted by multitudes
of people across generations."""

When the reports of a large number of transmitters of hadith concur
in their purport but differ in wording or in form, only their common
meaning is considered mutawatir, This is called mutausitir bi'l-ma’na,
or conceptual mutawitir. Examples of this kind of mutawitir are
numerous in the hadith, Thus the verbal and actual Sunnah which

itions is necessary. What is essential in

explain the manner of performing the obligatory prayers, the rituals
of haf, fasting, the quantities of zakih, rules relating to retaliation
(qisds) and the implementation of budild, etc., all constitute concep-
tual mutauitir. A large number of the Companions witnessed the acts
and sayings of the Prophet on these matters, and their reports have
been transmitted by multitudes of people throughout the ages.'"* The
other variety of mutawatir, which is of rare occurrence compared to
the conceptual mutawiitir, is called mutawitir bi'lolafz, or verbal
mutawatir. In this type of mutawatir, all the reports must be identical
on the exact wording of the hadith as they were uttered by the
Prophet himself. For example the hadith which reads; “Whoever lies
about me deliberately must prepare himself for a place in Hell-fi

wale oye etadie [yal Lance le AS" oy

The exact number of verbal mutawitir is a subject of disagreement,
but it is suggested that it does not exceed ten hadith,'"*

(b) The mashhir (well-known) hadith

The mashhir is defined as a hadith which is originally reported by one,
two or more Companions from the Prophet or from another
Companion, but has later become well-known and transmitted by an
indefinite number of people. It is, in other words, an dhdd hadith to
begin with, but became widely known in the second century, that is,
after the period of the Companions. It is necessary that the diffusion
of the report should have taken place during the first or the second
generation following the demise of the Prophet, not later. This would
mean that the hadith became widely known during the period of the
Companions or the Successors. It is argued that after this period, all
the hadith became well-known, in which case there will be no
grounds for distinguishing the mashhiir from the general body of
hadith."

For Aba Hanifah and his disciples, the mashhir hadith imparts posi-
tive knowledge, albeit of a lesser degree of certainty than mutauitr,
But the majority of non-Hanafi jurists consider mashhir to be
included in the category of solitary hadith, and that it engenders
speculative knowledge only. According to the Hanafls, acting upon
the mashhar is obligatory but its denial does not amount to disbelief,'"°
The difference between the mutawitir and mashhir lies mainly in the
fact that every link in the chain of transmitters of the muauatir
consists of a plurality of reporters, whereas the first link in the case of

96 PRINCIPLES OF ISLAMIC JURISPRUDEN

© Sunnah 97

ly. As for the remain-

mashhir consists of one or two Companions o
ing links in the chain of transmitters, there is no difference berween

the mashhir

idith are those

the mutawatir and mashhdr, Examples of
m the Prophet by a prominent Companion

which are reported
and then transmitted by a large number of narrators whose agreement

The mashhiir, according to the Hanatis,
Two such hadith that have
The killer shal} not inherit

upon a lie ds inec
may qualify the ‘general’ of the Qur’ar

so qualified the Qur'an are as follows:

pao, y

is a mashhiir hadith which qualifies the general provisions of the
Qur'in on inheritance in sGra al-Nisa’ (4:11). Similarly the mashhiir
hadith which states that

simultaneously with her paternal or maternal aunt

ysis de Vy Yaar le al tl Say

qualified the general provisions of the Qur’in on marriage where

a woman shall not be joined in marriage

has
the text spells out the prohibited degrees of marriage and then
declares: ‘It is lawful for you to marry outside these prohibitions
(al-Nist’, 4:24)

SS ely & pS Soty
The list of prohibitions provided in this dyah does not include simul-

taneous marriage with the maternal or paternal aunt of one’s wife:
this is supplied by the hadith

(c) The ahad (solitary) hadith

The ahad, or solitary, hadith (also known as khabar al-wihid) is a hadith
which is reported by a single person or by odd individuals from the
Prophet. Imam Shafi'l refers to it as khabar al-kehassal, as opposed to
kehabar al-'immah, which applies to every report narrated by one, two
or more persons from the Prophet but which fails to fulfil the require-
ments of either the muawatir or the mashhiir." It is a hadith which
does not impart positive knowledge on its own unless it is supported

by extraneous or circumstantial evidence. This is the view of the
majority, but according to Imam Ahmad ibn Hanbal and others, ahad
can engender positive knowledge."® Some ‘wlama' have rejected it
on the basis of an analogy they have drawn with a provision of the

haw of evid
of legal proc se who unquestioningly accept the authority of
bad, such as the Zihiri school vhen the Prophet
wanted to deliver a ruling in regard wo a particular matter, he did not
invite all the citizens of Medina to attend. The majority of jurists,
however, ag
is relan
tepugrur
speculative knowledge, acting upon which is preferable only, In the

that the testimony of one witness falls short

maintain that

-¢ that dhdd may establish a rule of law provided that it

y a reliable narrator and the contents of th

report are not

« Many ‘wlama” have held that ahdd engenders

event wh nce can be found in its favour, or
when there oppose its contents, then acting upon dhdd
is obligatory.* But ahiad may not, according to the majority of
lama’, be pon as the basis of belief (‘agidah). For matters of

belief must be four
at times seem preferable." As the Qur’in tells us, ‘Verily conjecture
truth’ (al-Najm, $3; 28)

on certainty even

if a conjecture (zann) may

tee atl oe Ge dell OF

Abad, being conjectural, docs not establish the truth. The following
dysh is often quoted in support of the dhad: ‘O believers, when a
transgrewor comes to you with any news, ascertain the truth, lest you
harm people unwittingly and then regret what you have done after-
wards’ (al-Hujurit, 496)

Lp lyn OF pcb fey Geld p Seb Of Nyarle oll tel
Ce glad 6 de | pas UE

By way of divergent implication (mafham al-mukhalafah), itis implied
that a report by an upright person is admissible. Commenting on this,
4-Qurtubl stated in his Tafsir that this dyah is reported by a just (‘adl)
enon, that reporting is in the nature of trust (amanalt) which is not
applicable to a transgremor. There is general consensus (ijmd) to the
effect that the report of a proven transgresor is not admissible,
The Companions generally accepted and acted upon solitary
‘on numerous occasions, inclading the report by AbG Bakr
al-Siddiq of the hadith "Leaders are to be from the Quraysh’ and also
his report that ‘Prophees are buried where they die.’

98 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Sunnah 99

The Caliph ‘Umar also acted upon the report by ‘Abd al-Rabmiin
ibn ‘Awf that the Prophet accepted the jizyah (poll tax) from the
Magians, and also on Mughirah ibn Shu'ba's report concerning the
grandmother's share in inheritance, The Caliph ‘Uthmin acted upon
the report of Fari'sh bint Malik concerning her probation period
following the death of her husband to ‘remain in her husband's house
until the end of her ‘idda’. And then Ibn ‘Abbas accepted Abd Said
al-Khudr’s hadith on the prohibition of ribi al-fadl (usury of exces).
Ic is also known, nevertheless, that the Companions, especially Ab
Bakr, ‘Umar and ‘Alt were cautious in their acceptance of hdd

reports

according 10 the majority of the ‘uland” of the Sour Sunni schools
acting upon ahd is obligatory even if dhdd fails vo engender positive
knowledge. Thus, in practical legal matters, a preferable zann is
sufficient as a basis of obligation. It is only in matters of belief where
conjecture ‘avails nothing against the truth’, Having said this,
however, ahdd may only form the basis of obligation if it fulfils the

following requirements

(1) The transmitter is a competent person, which means that
reports communicated by a child or a lunatic of whatever age ate
unacceptable, Women, blind persons and slaves are considered
competent for purposes of reporting the hadith.

(a) The transmitter of dhdd must be a Muslim, which means that
4 report by a non-Muslim is unacceptable. However, the reporter must
fulfil this condition only at the time of reporting the hadith, bur not
necessarily at the time when he received the information. There are
instances of hudith, for example, reported by Companions, pertaining
to the acts of the Prophet which they observed before they had
professed Islam."47

(3) The transmitter must be an upright person (‘adl) at the time of
reporting the hadith. The minimum requirement of this condition is
that the person has not committed a major sin and does not persist
in committing minor ones; nor is he known for persistence in degrad~
ing profanities such as eating in the public thoroughfare, associating
with persons of ill-repute or indulgence in humiliating jokes. This is
sometimes referred to as acts which indicate a lapse in one’s probity
or muni‘ah. A person who possess muni’ah is expected to behave
according to what may be expected of his peers, but this may be
changeable by reference co the culture and custom. of society.
Although the ‘wlamd’ are unanimous on the requirement of upright-
ness of character (‘adélah), they are not in agreement as to. what

this precisely means. According to the Hanafis, a Muslim who is
not a sinner (fisig) is presumed to be upright. The Shifi‘is are
more specific'on the avoidance of sins, both major and minor, as
well as indulgence in profane mubah acts. To the Maliki jurist Ibn
al-Hijib, ‘adalah refers to piety, observance of religious duties and
propriety of conduct. There is also some disagreement among the
‘wlama’ on the definition of, and distinction between, major and
minor sins.‘

‘The ‘adalah of a transmitter must be established by positive proof.
Hence, when the ‘adalah of a transmitter is unknown, his report is
unacceptable. Similarly, a report by an anonymous person (riudyah
al-majhail), such as when the chain of transmitters reads in part that
‘a man’ reported such-and-such, is unacceptable. The ‘adalah of 4
narrator may be established by various means including fazkiyah, that
is, when at least one upright person confirms it, or when the trans-
mitter is known to have been admitted as a witness in court, or when
a fagth or a leamed person is known to have relied of acted on his
report. But there must be positive evidence that the fagth did not do
$0 due to additional factors such as a desire on his part merely to be
cautious

Tazkiyah may consist of affirmation of probity (al-ta'dil) or of
expunction of probity (al-jarh). As to the question whether the muzakkt
(one who testifies for or against the probity of a narrator of hadith
or of a witness) needs to explain the grounds of his statement, it is
generally stated that there is a difference between testimony (shahddah)
and narration (rivilyah). Whereas explanation of the grounds of state-
‘ments/allegations is required in shahddah, this is not a requirement in
riwdyah, nor in affirmative tazkiyah, but it is a requirement in the
expunction of probity (al-jarh). The ‘ulama’ of hadith have confined
the grounds of al-jark to about ten, namely fabrication of hadtth,
attribution of lies to the Prophet, gross error, negligence (al-ghaflah),
transgression (al-fisg) other than lying, imagery (al-.ahm), ignorance
(aljahalah), heresy and pernicious innovation (al-bid ah), bad memory,
insertion of one’s own statements in a report so that it causes con-
fusion (tadlfs al-mutin), and indulgence in outlandish reporting that
goes against more reliable information.”

The criterion of ‘adalah is established for all the Companions
regardless of their juristic or political views. This conclusion is based
‘on the Qur'an which declares in a reference to the Companions that
"God is well pleased with them, as they are with Him’ (al-Tawbah,
9:10).

100 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Sunnah 101

we bye ote Sil ge)

A person’s reputation for being upright and trustworthy also serves
asa proof of his reliability. According to some ‘wlama’ of hadith, such
4 reputation is even more credible than confirmation by one or two
individuals."*7 With regard to certain figures such as Imam Malik,
Sufyan al-Thawl, Sufyin ibn ‘Uyaynah, al-Layth ibn Sa‘d, ete., their
reputation for ‘adalah is proof of relubility above the technicalities of
tazkiyah.*

(4) The narrator of di
his report may be trusted. If he is known for committing frequent
errors and inconsistencies, his report is unacceptable. The feulty of
retention, or daby, is the ability of a person to listen to an utterance,
to comprehend its meaning as it was originally intended and then to

dd must possess a retentive memory so that

retain it and take all necessary precautions to safeguard its accuracy
In cases of doubt in the retentiveness of a transmitter, if his report
can be confirmed by the action of his predecessors, it may be
accepted, But in the absence of such verification, reports by persons
who are totally obscure and whose retentiveness cannot be established
are unacceptable."

(5) The narrator should not be implicated in any form of distortion
(tadlis), either in the textual contents (main) of a hadith or in its chain
of transmitters (isndd). Distortion in the text is to add to the saying
of the Prophet elements which did not exist, of to detract from its
original content so as to distort its purport and mislead the listener
Tadlis in the isndd is to tamper with the names and identity of
narrator, which is, essentially, not very different from outright
forgery.°* One form of tadlis is to omit a link in the chain. of
narrators. The motive for such omission is immaterial. Sometimes it
is observed, for example, that a single weak link in an otherwise
reliable chain of transmitters is omitted with a view two showing the
isndd reliable in every part. Whatever the motive may be, a tadlis of
this kind is, for all intents and purposes, equivalent to. forgery.
However, if the narrator is a prominent scholar of irreproachable
reputation, his report is normally accepted, notwithstanding a minor
omission in the chain of isnad.'®

(6) The transmitter of ahdd must, in addition, have met with and
heard the hadith directly from his immediate source. The contents of
the hadith must not be outlandish (shadhdh) in the sense of being
contrary to the established norms of the Qur'in and other principles

of Shari'ah, In addition, the report must be free of subtle errors, such
as rendering ab as iby ‘father’ as "son’), or other such words that are
similar in appearance but differ in meaning.

With regard to the wording in which the Companion has narrated
the hadith, the ‘ulama’ have identified a number of Arabic expressions
which indicate, on a descending scale, the strength and reliability of
transmission. Thus, when a Companion reports that, ‘I heard ~ sami‘
~ The Messenger of God saying such and such’, it is more specific
than saying that, "The Prophet said (gala rasiil Allah} so and so". This
latter expression is, in turn, stronger than such other terms as “The
Messenger of God commanded such and such of prohibited such and
such — amera rasiil Allah bi-kadhd wa nahd ‘an kadhd,’ or that ‘he
ordered such and such and forbade us from such and such — amara bi-
adhd wa nahayna ‘an kadhd.” And even this last expression is deemed
to be a degree stronger than merely saying that ‘the Sunnah is such
and such ~ inna as-sunnata kadhd.’ Weaker still is when a Companion
simply reports something ‘from the Prophet ~ ‘an an-nabi’. And lastly,
when a Companion relates, "We used to do such and such when the
Prophet was alive’

The three Imams, AbG Hanifah, a)-Shafi'l and Abmad ibn Hanbal,
rely on dhad when it fulfils the foregoing conditions, Aba Hanifah,
however, laid down certain additional conditions, one of which is
that the narrator’s action must not contradict his narration. It is on
this ground, for example, that Ab Hanifah does not rely on the
following hadith, narrated by Abd Hurayrah: ‘When a dog licks
a dish, wash it seven times, one of which must be with clean
sand"?

Pld Lae and sacl sg ASS! Sy 154
alt Gl sy

Aba Hanifah has explained this by saying that AbO Hurayrah did
not act upon it himself and has, in fact, given a fatwil that the dish 40
licked should be washed only three times, But this is only when the
divergent act or fani is after the initial report and not before,'*
‘Another example is the hadith reported by ‘Avishah to the effect that
‘marriage of a woman is invalid without the permission of her

guardian [wull).

OP ISLAMIC JURISPRUDENCE

The Sunnah 103

102 PRINCIPLES
aol: GIS Udy 03) pa CAS af pl US

The Hanafis do not act on this because ‘A’ishah acted to the contrary
when she contracted the nikah of her niece, the daughter of “Abd al-
Rabmin, while he was absent in Syria, The majority do not agree
with Hanafls because the narrator's divergent act could be due to
forgetfulness, or because he acted on his mistaken ijtihdd, neither of
which warrant departure from the hadith. The Hanafis further require
that the subject-matter of ahdd is not such that would necessirate
the knowledge of a vast number of people. If, for example, we are
informed, by means of a solitary report, of an act or saying of the
Prophet which was supposed to be known by hundreds or thousands
of people and yet only one or «wo reported it, such a hadith is not
reliable, The hadith, for example, that ‘anyone who touches his sexual

organ must make a fresh ablution"

Los gld 0 Sd Stel ne 13}

is not accepted by the Hanafis. The Hanafis have explained that, had
this hadith been authentic, it would have become an established
practice among all Muslims, which is not the case. The hadith is there-
fore not reliable. The majority of ‘ulamd’, however, do not insist on
this requirement," The Hanatts have similarly not acted on three
other hadith, one of which requires a fresh ablution (wuda’) follow=
ing consumption of food that is cooked by fire, and the other which
requires the same after carrying a funeral, and the third which requies
that famiyah (i.e. reciting bismillah al-rabman al-ralitm in saldh) should
be recited aloud. None of these are reliable, according to the Hanafts,
for if they were, people would have acted on them, The jumhiir are
once again in disagreement on the analysis that people often witness
an event, or hear about it, but do not necessarily report what they
have seen. The fict, therefore, that a hadith pertaining to a matter of
common occurrence is reported only by one or a few individuals is
not conclusive evidence that the hadith is unreliable.

And finally, the Hanafis maintain that when the narrator of had is
not a fagih, his report is accepted only if it agrees with the general
principles of Shariah and qiyas, otherwise giyis would be given
priority over ahad. However, if the narrator is known to be a fagth,

then his report will be preferred over giyas. It is on this ground, for
example, that the Hanafis have rejected the hadith of mugarrét, that

is, the animal whose milk is retained in its udders so as to impress
the buyer. The hadith is as follows: ‘Do not retain milk in the udders
of a she-camel or goat so as to exaggerate its yield. Anyone who
buys a musaris has the choice, for three days after having milked
it, cither to keep it, or to return it with a quantity {ie a sa] of

dates.""*"
MAL gh Tree BLS gba om ceially WY! Dyna Y
ell op Lele par 39 5, ele of « pf aD

The Hanafis regard this hadith to be contrary to giyas, that is, to
analogy with the rule of equality between indemnity and loss, Abd
Hanifah has held the view thar a 5° of dates may not be equal in value
to the amount of milk the buyer has consumed; thus, if the buyer
wishes to retum the animal, he must return it with the cost of the
milk that was in its udders at the time of purchase, not with a fixed
quantity of dates, The Hanafls have added that the buyer will have
consumed what belonged tw him, as he has paid for and taken delivery
of the animal; he is therefore not liable to compensation. The ruling
of the hadith is contrary to normal rules, which is why the Hanafis
do not act on it. The majority of ‘wlama’, including Malik, Shafi, Ibn
Hanbal and the disciples of AbO Hanifah, Abd Yosuf and Zafar, have
‘on the other hand accepted this hadith and have given it priority over
giyis. According to the majority view, the compensation may consist
of a 4° of dates or of its monetary value. Dates were specified in the
hadith as it used to be the staple food in those days, which may not
be the case any more."**

Imam Milik would rely on a solitary hadith on condition that it did
not disagree with the practice of the Medinans (‘amal ahl al-Madinah);
he considered the standard practice of the people of Medina to be
more representative of the conduct of the Prophet than the isolated
report of one or two individuals. In his opinion, Medinan practice
represents the narration of thousands upon thousands of people until
it reaches the Prophet. It is, in other words, equivalent to a mashhir,
or even mufawitir. When an ahad report contradicts the practice of
the Medinans, the batter is, according to the Maliki view, given priority
over the former. The Malikis have thus refused to follow the hadith
regarding the option of cancellation (lehiyar al-majlis) which provides
that ‘the parties to a sale are free to change their minds so long as they
have not left the meeting of the contract’,

104 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Sunnah 10s

Aig fe LEU Lagin dely JSG ODL J euld 13]

The reason being that this hadith is contrary to the practice of the
people of Medina.'*

A contract, according to the Maliki school, consists of a meeting
ds through a valid offer and acceptance, and becomes bind-
ing as of that moment, Khiyar al-majlis contravenes the sanctity and
binding character of a contract after its conclusion; it should there
fore have no effect on the finality of the contract, The Malikis have
similarly upheld the Medinan practice of ending the salah with only
one saldm instead of the two that are offered by the jumhir. The
Medinans have always practised only one sald and the Malikis have
preferred this to the two pronouncements of saldm practised by the
majority. The Maliki jurist Qadi ‘Ayid observed that the Medinan
practice either agrees or disagrees with the dhdd hadith, If the two
are in agreement, then the one supports the other and no question
of preference would arise. In the event of conflict between the
Medinan practice and ahdd hadith, the former is preferred with regard
to factual reports but the latter is preferred in ijbihidd matters.

Imam Shifi'l laid down four conditions that the narrator of ahad
hadith must fulfil: (1) he is pious and known for his honesty; (2) he
understands the words and purpose of the hadith; (3) he is retentive
and remembers the hadith even if he needs to refer to his notes;
(4) his report does not contradict the body of hadith that is known to
the ‘ulama’ of badith, expecially when the subject is already known.
These conditions must be met at every level of transmission, Imam
Shafi'l thus emphasised that every hadith must have a valid chain of
transmission (isndd) which is connected all the way back to the
Prophet himself. This is why al-Shafi‘t does not, in principle, accept
the mursal hadith, which is basically an ahd hadith, albeit with a
broken ismdd, unless it meets certain conditions. The Shafi‘is have
consequently not acted on the hadith reported by al-Zuhri from
‘Aisha where she said: ‘Hafsah was given a present of foodstuils
while both of us were fasting, but we broke the fast and ate some.
Then the Prophet came and we told him that we were given 2 gift
of foodstuffs which seemed appetising and we broke our fast. To this
the Prophet said: “You should observe a belated fst on another
day.”

of the m

WS pb tai oul: IG (opiate os gy)
BI Je BNI) ie Joa Fh i gets
fae Casal ty BN Joh Us = Ley ale

i be - BS) Ji LLG Lgl,
wel bey WIS Lape LeSle Y ply ale

This is because al-Zuhri, who is a tabi'l, reported from ‘A’ishah with-
out having heard it from her directly. It is held, therefore, that one
who breaks a supererogatory fast is not liable to a belated performance
by way of compensation.

Imam Ahmad ibn Hanbal is basically in agreement with al-Shifi'
in this in that both have emphasised the isdd, but he differs with al-
Sh38l in regard to acting upon the munal, Imam Abmad accepts in
principle the mursal, but has nevertheless considered it to be weak,
and thus it may be superseded by the farui of one of the Companions

‘The general view that the dhdd is zanni, and may, therefore, not form
the basis of ‘agidah, is not accepted by Imam Ahmad ibn Hanbal, for
whom ahad imparts positive knowledge. His disciple, fba Taymiyyah,
qualified this by saying that dhad does impart ‘ilm if it is supported by
other evidence, although it is basically zanni. There is no doubt, accord~
ing to al-Shawkini, and also al-Amidi, that when ahad is supported
by ijmd, it becomes gaif and that the question of gannt and qafl in
ahad often depends on other supportive evidence. Hadith that are
recorded in al-Bukhirl and Muslim, al-Shawkini adds, have been
generally accepted by the ummah and this is itself supportive
evidence. All the four imams of jurisprudence have considered ahiid
to be authoritative in principle, and none reject it unless there is
evidence to suggest a weakness in its attribution to the Prophet, or
which may contradict some other evidence that is mote authoritative
in their view.

The majority of ‘lama’ do not insist that the ahad should consist
of a verbatim transmission of what the narrator heard in the first place,
although this is the most authoritative form of transmission in any
kind of hadith. They would instead accept the conceptual transmis-
sion of an ahad, on condition, however, that the narrator understands

106 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Sunnak 107

the language and purport of the hadith in full. Only then will the
rendering of the hadith in the narrator's own words, which conveys
an equivalent meaning, be acceptable. However, if the narrator
does not possess this degree of knowledge and is unable to transmit
the hadith in its original form, all the four Sunni schools are in
agreement that his own rendering of the concept of the hadith is
unacceptable."

Some ‘wlama of the Hanafi and other schools have held that concep-
tual transmission is totally forbidden, a view which is refuted by the
majority, who say that the Companions often transmitted one and
the same hadith in varying words, and no-one can deny this. One of
the most prominent Companions, ‘Abd Allah ibn Mas‘Qd, is noted
for having reported many hadith from the Prophet and made it
known that ‘the Prophet said this, or something like this, or something
very close to this’, No one has challenged the validity of this manner
of reporting: thus the permissibiliry of conceptual transmission is
confirmed by the practice of the Companions, and their consensus is
quoted in its support. Having said this, however, accuracy in the
transmission of hadith and retaining it in its original version is highly
recommended." This is, in fact, the purport of a hadith from the
Prophet which reads: ‘May God bless with success one who heard
me saying something, and who conveys it to others as he heard it;
and may the next transmitter be even more retentive than the one
from whom he received it.""*”

CES flee Op ane LS ald at Lin er A pl a his

wed

Sometimes the transmitter reports a hadith but omits a part of it
The question then arises as to whether this form of transmission is
permissible at all. In principle, the narrator of any type of hadith must
not omit any part that is integral to its meaning, for instance when
the omitted part consists of a condition, or an exception to the main
theme of the hadith, or which makes a reference to the scope of its
application. However, the narrator may omit a part of the hadith that
does not affect the meaning of the remaining part; for in this case,
the hadith at issue will be regarded, for all intents and purposes, as
two hadith, It bas been a familiar practice among the ‘ulama’ to omit
a part of the hadith which does not have a bearing on its main theme.
But if the omission is such that it would bring the quoted part into

conflict with its full version, then the issue will be determined, not
under the foregoing, but under the rules of conflict and preference
(al-ta‘aritd wa'l-tarih). In any case, the preferred practice is to not omit
any part of the hadith, as the omitted part may well contain valuable
information on some point and serve a purpose that may not have
occurred to the narrator himself."

In certain hadith that are reported by a number of transmitters,
there is sometimes an addition to the text of a hadith by one trans-
miter which is absent in the reports of the same hadith by others
The first point to ascertain in a discrepancy of this nature is to find
‘out whether the hadith in question was originally uttered on one and
the same occasion or on different occasions. If the latter is the case,
then there is no conflict and both versions may be accepted as they
are. But if it is established that the different versions all originated in
‘one and the same meeting, then normally the version which is trans
mitted by more narrators will prevail over that which is variantly
transmitted by one, provided that the former are not known for errors
and oversight in reporting. Consequently, the additional part of the
hadith which is reported by 2 single transmitter will be isolated and
rejected for the simple reason that error by one person is more likely
in this case than by a multitude, But if the single narrator who has
reported the addition is an eminently feliable person and the rest are
known for careless reporting, then his version will be preferred,
although some ‘ulama’ of hadith do not agree with this. Additions and
discrepancies that might be observed in the isndd such as when a group
of narrators report a hadith as a mural ~ whereas one penon reported
it as a musnad (that is, a muttasil, of continous) ~ will be determined
by the same method that applies to discrepancy in the text. However,
sometimes the preference of one version over the other may be deter-
mined on different grounds, To give an example, according to one
hadith, ‘Whoever buys foodstufls is not to sell the same before it is
delivered to him.”

hb pny (gm Me Mb lab 6 LE
However, according to another report, the Prophet has issued a more

general instruction according to which Muslims are “forbidden from
selling that which they do not have in their possession’.

ode EGY

108 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The

nah 109

The Hanafis have preferred the second version, as it is conveyed
in broader terms, which comprise foodstufls as well as other

commodities."

IIl.2 The Discontinued Hadith (al-Hadith Ghayr
al-Muttasil)

This is a hadith whose chain of transmitters does not extend all the
way back to the Prophet. It occurs in three varieties: mursal, mu‘dal
and mungati', The munal, which is the main variety of discontinued
hadith, is sometimes also referred to as mungafi’, The mursal is defined
as a hadith which a Successor (sbi'f) has directly attributed to the
Prophet without mentioning the last link, namely the Companion
who might have narrated it from the Prophet. This is the majority
definition. The Hanafls, however, have defined mursal as a hadith that
a reliable narrator has attributed to the Prophet while omitting a part
of its isnad. The missing link may be a Companion or even a
Successor, according to the majority, but it may be a narrator among
the second generation of Successors according to the Hanafls. Since
the identity of the missing link is not known, it is possible that he
might have been an upright person, or not. Because of these and other
similar doubts in its transmission, in principle, the ‘ulamd’ of hadith
do not accept the mural" According to al-Shawkint, ‘the majority
of ‘ulama’ of ujal have defined mursal as a hadith transmitted by one
who has not met with the Prophet, and yet quotes the Prophet
directly. The transmitter may be a Successor or a follower [tabi
al-tdbi'f} of anyone after that’. Imam Abmad ibn Hanbal does not rely
on it, nor does Imam Shafi'l, unless it is reported by a famous
Successor who is known to have met with a number of Companions
Thus, a mural transmitted by prominent Successors such as Sa‘td
ibn al-Musayyib, al-Zubri, ‘Algamah, Masrq, al-Sha'bi, Hasan
al-Bayri, Qatidah, etc. is accepted, provided that it fulfils the follow.
ing conditions,'s"

Firstly, that the mursal is supported by another and more reliable
hadith with 4 continuous chain of transmitters, in which case it is the
latter that would represent the stronger evidence. Secondly, that one
mursal is supported by another mursal, and the latter is accepted and
relied upon by the ‘ulama’, Thirdly, that the mursal is in harmony with
the precedent of the Companions, in which case it is elevated and
attributed to the Prophet, The process here is called raf* and the hadith
is called marfa‘. Fourthly, that the mursal has been approved by the

lami’ and a number of them are known to have relied on it. Fifthly,
that the transmitter of mursal has a reputation not to have reported
weak and doubtful hadith. For instance, the mural transmitted by
Sa'id ibn al-Musayyib, or any one of the prominent Successors
mentioned above, is normally acceptable.'**

When a mursal is strengthened in any of these ways, especially
when the Successor who has reported it is a leading figure and has
met with the Companions, Imam Shafi will find it acceptable. Buc
even $0, if the murial in question is contradicted by another hadith
which is more reliable, the latter will take priority

The foregoing basically explains al-Shifi‘l's approach to the mursal.
Imam Ab Hanifah and Imam Malik, on the other hand, are lew
stringent in their acceptance of the mursal. They accept not only the
mursal which is transmitted by a Successor, but also one which is
transmitted by the second generation of Followers, known as tah
al-t3bi's. In support of this they quote the fradéth in which the Prophet
is reported to have said, ‘Honour my Companions, for they are the
best among you, then those who follow them and then the next
generation; and then lying will proliferate."""’

pple ait Fe Fake ep glacl Ly st
ASI sells Fe pA gh cuill ¢

However, both Imams Abo Hanifah and Malik add the proviso that
the narrator of 3 mural must be a leading transmitter of hadith, failing
which his report will be unacceptable. They rely on it only when they
are assured of the trustworthiness of the narrator. They hold the view
that when an uptight and leamed man is convinced about the truth
and reliability of a report, he tends to link it directly to the Prophet,
saying that the Prophet said such and such but, when he is not so con-
vinced, he refers to the person from whom he received it. Examples
of such mural are those that are transmitted by Mubammad ibn Hasan
al-Shaybint, who is a tabi'al-tabi'r but considered to be reliable, The
majority of ‘wlama’ are of the view that acting upon a musal hadith is
not obligatory.

‘Based on this analysis, che Mu‘tazilah considered mursal to be even,
stronger than musnad (connected) hadith, a position which al-Shawkin}
considered to be less than warranted. The Malikt scholar Ibn al-

Hajib, and Ibn al-Homim among the Hanafis, held that mursal is only
acceptable from the leading and most reliable transmitters and no one

110 PRINCIPLE ISLAMIC JURISPRUDENCE The Sunk x
eT 1 =

Subki, accep . Sith n dur 3

first ¢ ‘ runes Hijna , aa¥Sod

Follower ter z f A i
The different approaches tha a k

toward the reliability of the mursa o " os F

fact that Shafi'l and Abmad ibn Hanba! f bits or hasan. It is called weak owing to a

time from the Prophet. Hence . . y . xtua

transmission more strongly thai arratot kn : nemony, or his ino f

Malik d 3 There ai ct
The remaining two varieties f da Of, murs ; ¥ of hadith Sevier

be mentioned only briefly are the mungari’ and the mu’ da M - hart prot (buijak

refers to a hadith whose chain of nar has a single missing link There. ate other categ - Fick

somewhere in the middle, The mw the other hand, is a hadith muda, w . ees hadhdh is

in which ewo consecutive links are missing in the chain of ies narrators with 3 poor h ois wi re reliable hadith

Neither of them are acceptable; and the ‘wlamd’ are in agreement on a hadith w snot be cla to be uprig

thi and retennve of and seosdearib is a hadith ontents ar

IV. Sahih, Hasan and Da‘tf ened inebergy —

From the viewpoint of their relia has NOt met or one who lived in a

been graded into the following categories: (1) the Companions who iaiodhaee reek aside Snvactote'th

are generally accepted to be reliable; (2) thigat thabitiin, or those who tinned wich another and’ their seports' an

rank highest in respect of reliability next to the Companions; (3 i 4 the matrite

or those who are trustworthy but of a lesser degree than the first two; setseor is sccmmed : whose report
4) sadaq, or truthful, that is one who is not known to have commit fe

ted a forgery of serious errors; (4) sadly yahim, that is truthful but al sverall acceptability of a hadith

commuting errors; (6) magbil, or accepted, which implies that there weal Thus, che

is no proof to the effect that his report is unreliable; (7) majhill, or a
These are followed by lower classes of
penons who are classified as sinners (fussdg), those suspected of lying,

narrator of unknown identity

and outright liars.

A hadith is classified as sahih, or authentic, when its narrators belong
to the first three categories. It is defined as a hadith
tinuous isndd all the way back to the Prophet, consisting of upright

persons who also possess retentive memories and whose narrath
free of both obvious and subtle defects

The hasan hadith differs from the gahth in that it may include among
its narrators a person or persons who belong to the fourth, fifth or
sixth grades on the foregoing scale, It is a hadith that falls berween
sahil and da‘if, and although its narrators are known for truthfulness,

weak ms wniid results ix

he hadith aleogeth Aton is suspecte

wheress'all the rest ere thy (thigdl) ar

known thr t will be graded

ma’ of hadith

traced back to the

nwous chain whone piety and
A hadith which does not fulfil

accepted. A weak or da'if hadith does not

reputation are beyond reproach
these

constiqute a sharl peoof (bujjah) a

uirements is 1

nd is generally rejected.

: oie bok The Sunnah 113

J, Un, p. 90 Hit, Wate, p. 293; Zubsyli
z Rochas sts A'bad exming ay
Ford Suraya, Ongin, pp. Rf; Hasan, Euly Development, p.&
Aba Diwad, Sunon (Hasan’s trans), I
Shacibt, Muga, 1H. 197 ery, Pm
4. For d Gury, Origin
Ci Azam, Seles, p. 4 2; Mtawall, Mahtd’,p. 38
Aba Diwod, Suman, ff, 1294, badhik no. 4390; Shawkact, Inhid, p. 33 h no, 9067; Tabetal, Muhkit, 1,
: x (Mami .
pee o
1. CE. Has, £ pati Shable, Aushorty of Had 2 Aba Zaharah, Abi Manifah, pp. 108-9; Qaradaot, Shea aim, p. 4
1a. CE. Anam 3. Fabetat, Mba, 1
15. Shaé't, Risa 4. Shalelt, abla, p. $16
16, Wid, p. 077 p26; Haun, Bay Developerns, pp Katty Ayghntal-Mubi 11, 442s Dn, aloNilagah pp: 30-3
4, Shawhdn, fad p. 3), hid. pp. 8
9. hall ‘lin p. 8. Shales, alld, p. $11
20, Ghul, Mica, 1, & J Badei, Uhl, pp. Kym
21, Khali, dim, p37. fbn Hanbal, Mumed, Hl, x02; Askar, Tar ‘
22, Shafi, Riala, i, apf 61. Bokhart, Sehr, Ki al-Macalim (Bab 2), hadtdh 0. 2468
3. Shauibi, Minding, 1V 662. Shale, astm, p.
4. Shaved Fahd, p. 36: Kall, im, po yk; Baca, Ui p 8 sy. Ibid. ps
4s. AbO Diw0d, Suna, I, 46, hath no, 16; Ami, ibn 1 64. Ch Shicibt, Muwdfogt, LV, 5; Badia, Liat, p, 100
Khalaf, im, p. 36; Abd Zahrah, Ui, p. 65. Shaqibh, Minsdfogt, 1V, 4; Sib, ab-Swnna, p. 377; Wad, Ui pha
Tabrizt, Mubhit, 1, 166, badtih no, $33; Shawhial, fbi pr 42; Khali 6. Shaibl, Muwifogte, WV, 4
p36 67, Cf Badean, Ul, p. 103
f. Abd Diw0d, Seman, |, had no, 334; Badri, Ul pp GK. While quoting al-Averi"I om this pone, Shawkanl (Inhid,p. 3) concurs with the
Shawkint, Inhuld, p. 61; Badrin, Buyin, p, 74. view that the Sionah is an independent source of Sharf sh, and not necomarily, as it were,
30, CE lamd't, Mad, p. 7: 4 commentary on the Que'sn only. See alo Shai, Mundfagd, 1V, 4
34. Shale, albldm, p $12: Khali “fim, p. 43 tp, See Shitibt, Musiq, 1V, 5
33, lant, Nibayoh I, 171; Hing, Walt, p. 272. As forthe report that the prominent 70. Ibid. See ao Sibi", a-Swnah, pp. 378-9,
Companion, “Abd All ibn ‘Umar, wed to imitate the Prophet in hiv natural activities 71. Shigibi, Muvdfgit, 1V, $3 Bahnasawi, alSunnah, p. 96
100, iti hed that he did 50, not because dt was recommended (mandi), but hecaune of 72. Shaki, Manfoqit AV, 6

his devotion and affectia
1). Sh

9: Khali, hn, p. 995 Haden, Ul, 0

vaghee Siba', al-Sunnah, p. 9
Dayhagl, al-Sunan al-Kidbed, 11, 10.

Ton Qayyins, Fim, I, ap57 Sib", al-Sommah, p. yNog Badetn, Usa, pp

ee, all

P. Sia; Khall mp. 45
34. In particular nour stras al-Ni

4:9)o al-Bagarah (2:2

and al-Fallg (6s

114 PRINCIPLES OF 15
6, Badan, E s. Ak aly Ui, po By: Agios,
‘ r fim, p 4 as Lae as the event th =y Hija
, nan, KID ab-Fard Ud, U1, yRa: To Majuh, Sunan, 1, 913, bodrth nc
CE. Si wana, p. 388-9 A Hea, Wal, F As for the aha pertaining
4 For det bas, ab 8 A arin, U K a
Ibid. F
For these and . W ff; Abo Zahewd, Mabmavcin,
ah H ped
abe . A . Hira, Shawkin, lnk Ai a, Uni, p. Ke; Badin, Ll, p. 93: Khudar
Jetuils Sibi", a-Si, p. 8; Hi, W i yor
See for details Siba't, al ’ 19
Shawkani, Jnhid, p. 214; Aghnides, Muhammadan pa Ab Unit pe
Shawhant, dnhid, p. 47; Hitu. Wig, p. 294 Masha Pat, bedtih
16. Ghaaill, Mustay@, 1, 9%; Shawhiol, Jah p. 47: Hin, Waite, p YR. Abo Zabrah, Us, p. #
Ghazal, Masta, 1, 47% illastrates this a» followse sappoxing that &v yo. Tabet, Mishba 30. 319
he two combined amount to poridive knowledge Shaft, Risdish,p Asli 241, hadnh no. 964: Abd Zab,
vol, Ghazill, Musing, 1, #6: Khudars, Ul, p. t4 Ss: CQurnubt, Biddy
29, Shawkint, Inhild, p. 4%; Mina, Wats, ps 2 tga Toa Taymiyysh, Mejmicah, XVIE, 40; Shawksnt, Inhad, p. 49; Bahnachw',
110. Ghasill, Miatagf, 1, 86; Shawanl, Ink, p48 Sunah pp: 166-7, Una. p. 433
Lia. Aba Zahrah, Abd anti, 5 a5, Hit, Wajte, pp. 317% Bodrsn, Usil, pp. 97-8
Lua, londwh, Niki, I, 18g; Abo ps Ha: Kal, “Hip 4 taf Khudart, Lisl, p. 229
13. Aba Dawod, Sinan (Hasan’s trams), Il, 1036, hadi nes 94 Laz, Tabet, Mishka, 1, 7, hadith mo. 20 Khuda,

U4. Baden, Usa, p 4 Khodsr, Usil, p. 237; Him, Wats, pp. 319

116 PRINCIPLES

RISPR

49: Tabell, Mishka,
487; Kivudari, Ui, p. 233 HY

Hira, Wa 16: K
51. Shawkant, Ihild, p. 6

Ba e K
53. Shafi, Riutleh, p, 904
1540 Mid. p. 6g; Ava Za

Isend', Mani, pp

CHAPTER FOUR

Rules of Interpretation
Deducing the Law from its Sources

Introduction

To interpret the Qur'an or the Sunnah with a view to deducing legal
rules from the indications they provide, it is necesary that the language
of the Qur’in and the Sunnah be clearly understood. To be able to
utilise these sources, the mujrahid must obtain a firm grasp of the
words of the text and their precise implications. For this purpose, the
ulama’ of usil include the classification of words and their usages in

the methodology of usill al-figh. The rules that govern the origin of
words, their usages and classification are primarily determined on

linguistic grounds and, as such, they are not an integral part of the

instrumental as an aid to the correct

law or religion. But they a
understanding of the Shari'ah

Normally ehe mujtahid will not resort to interpret
itself is self-evident and clear. But by far the greater part of figh consists
of rules that are derived through interpretation and ijtihad. As will be
discussed later, ijtihdd can take a vanety of forms, and interpret

on when the text

which aims at the correct understanding of the words and sentences
of a legal text, is of crucial significance for all forms of ijtihad.

The function of interpretation is to discover the intention of the
Lawgiver ~ or of any person for that matter ~ from his speech and
actions. Interpretation is primarily concerned with the discovery of
that which is not self-evident. Thus, the object of interpretation in
Islamic law, as in any other law, is to ascertain the intention of the

118 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Rules of Interpretation I: Deducing the Law from its Sources 119

Lawgiver with regard to what has been left unexpressed as a matter
of necessary inference from the surrounding circumstances.

From the viewpoints of their clarity, scope and capacity to convey
certain meaning, words have been classified into various types. With
reference to their conceptual clarity, the ‘ulama’ of usiil have classi-
fied words into the two main categories of ‘clear’ and ‘unclear’ words
The main purpose of this division is to identify the extent to which
the meaning of a word is made clear or left ambiguous and doubiful.
The significance of this classification can be readily observed in
linguistic forms and implications of commands and prohibitions. The
task of evaluating the precise purport of a command is greatly facili-
tated if one is able to ascertain the degree of clarity (or of ambiguity)
in which it is conveyed. Thus the manifest (zdhir) and explicit (nays)
are clear words, and yet the jurist may abandoo their primary meaning
in favour of a different meaning as the context and circumstances may
require. A word is also classified, from the viewpoint of its scope, as
homonym, general, specific, absolute or qualified. This classification
basically explains the grammatical application of words to concepts:
whether a word imparts one or more than one meaning, whether a
word is of a specific or general import, and whether the absolute
application of a ward to its subject-matter can be qualified and limited
in scope.

From the viewpoint of their actual use, such as whether a word is
used in its primary, secondary, literal, technical or customary sense,
words are once again divided into the pwo main categories of literal
(hagiqi) and metaphorical (majazt), The methodology of usll al-figh
tells us, for example, that commands and prohibitions may not be
issued in metaphorical terms as this would introduce uncertainty in
their application. And yet there are exceptions to this, such as when
the metaphorical becomes the dominant meaning of a word to the
point that the literal or original meaning is no longer in use

The strength of a legal rule is, to a large extent, determined by the
language in which it is communicated. To distinguish the clear from
the ambiguous and to determine the degrees of clarity/ambiguity in
words also helps the jurist in his efforts to resolve instances of conflict
in the law, When the mujtahid is engaged in the deduction of rules
from indications that often amount to no more than probabilities,
some of his conclusions may tum out to be at odds with others. [jtihad
is therefore not only in need of comprehending the language of
the law, but also needs a methodology and guidelines with which to
resolve instances of conflict in its conclusions. We shall be taking up

cach of these topics in the following pages, but it will be usefull ro
start this section with a discussion of ta'wil

I. Ta’wil (Allegorical Interpretation)

It should be noted at the outset that in Arabic there are two common
words for interpretation’, namely tafstr and ta'wil. The latter is perhaps
closer to ‘interpretation’, whereas tafir literally means ‘explanation’.
The English equivalents of these terms do not convey the same differ-
ence between them that is indicated in their Arabic usage. 'Allegorical
interpretation’ is an acceptable equivalent of ta'wil, but 1 prefer the
original Arabic to its English equivalent. I propose therefore to
explain the difference between fafsir and 1a'wil and then to use ta'wil
as itis

Tafsir basically aims at explaining the meaning of a given text and
deducing a hukm from it within the confines of its words and
sentences.* The explanation so provided is, in other words, borne out
by the content and linguistic composition of the text. Ta'wil, on the
other hand, goes beyond the literal meaning of words and sentences
and reads into them a hidden meaning which is often based on
speculative reasoning and ijtihid, The norm in regard to words is that
they impart their obvious meaning. Ta’w4l is a departure from this
norm, and is presumed to be absent unless there is reason to justify
its application.’ Ta’wil may operate in various capacities, such as
specifying the general, or qualifying the absolute terms ofa given text.
All words are presumed to convey their absolute, general, and
unqualified meanings unlews there 1s reason to warrant a departure to
an alternative meaning.

From a juridical perspective, ta'utl and tafsir share a basie purpose,
which is to clarify the law and to discover the intention of the
Lawgiver in the light of the indications given, some of which may
be definite and others more remote. Both are primarily concerned with
speech that is not self-evident and requires clarification. Sometimes
the Lawgiver or the proper legislative authority provides the necessary
explanation to a legal text. This variety of explanation, known as tafifr
ashi, is an integral part of the law. To this may be added rafite which
is based on definitive indications in the text and constitutes a necessary
and logical part of it. Beyond this, all other explanations, whether in
the form of tafsit of of 4a'ul, are of the nature of opinion and ijtihad,
and as such do not constitute an integral part of the law. The distinc-
tion between tafir and (a’uAl is not always clear-cut and obvious. An

120 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Railes of Interpretation I: Deducing the Law from its Sources 121

explanation or commentary on a legal text may partake of both, and
the two may converge at certain points. It is nevertheless useful to be
aware of the basi l, We should
also bear in mind that in the context of ugal al-figh, especially in our
discussion of the rules of interpretation, it is ta’wil rather than tafsir
with which we are primarily concemed.

The ‘wlama’ of usiil have defined ta’wfl as departure from the mani
fest (zahir) meaning of a text in favour of another meaning, where
there is evidence to justify the departure. Ta'wil that is attempted in
accordance with the conditions that ensure its propriety is generally
accepted, and the ‘wlama’ of all ages, including the Companions, have
applied it in their efforts to deduce legal rules from the Qur'an and
Sunnah. Ta’wil that is properly constructed constitutes a valid basis
for judicial decisions. But to ensure the propriety of ta’uil, it must fulfil
certain conditions, which are as follows: (1) that there is some evidence
to warrant the application of ta'udl, and that it is not founded on mere
inclination or personal opinion; (2) that the word or words of a given
te ta’wil, In this way only certain types of words,
including for example the manifest (zdhif) and explicit (naj), are open
to ta'wtl, but not the unequivocal (mufassar) and the perspicuous
(mubkam). Similarly, the general (‘dmm) and the absolute (muflag) are
susceptible to ta’wil but not the specific (khds)) and the qualified
(mugayyad), although there are cases where these too have been
subjected to ta'wfl; (3) that the word which is given an allegorical
interpretation has a propensity, even if only a weak one, in favour of
that interpretation, This condition would preclude a far-fetched
interpretation that goes beyond the capacity of the words of a given
text; (4) that the person who attempts fa'uil is qualified to do so and
that his interpretation is in harmony with the rules of the language
and customary or juridical usage. Thus it would he unacceptable if
the word qur’ in the Qur‘dnic text (al-Bagarah, 2:228) were to be
given a meaning other than the two meanings which it bears, namely
menstruation (hayd) and the clean period between menstruations (fuk?)
For qur’ cannot carry an additional meaning, and any attempt to give
it one would violate the rules of the language. But ta'wil in the sense
ofa shift from the literal to the metaphorical and from the general to
the specific is not a peculiarity of Arabic, in that words in any
language are, in fact, amenable to these possibilities.’

There are two types of ta’wil, namely ta'wil that is remote and
far-fetched, and relevant ta'wil, which is within the scope of what
might be thought of as correct understanding. An example of the first

distinction between tafsir and ta’

are amenable

type is the Hanafi interpretation of a hadith which instructed
Companion, Firtz al-Daylami, who profesed Islam while he was
married to two sisters, to ‘retain amsik] one of the two, whichever
you wish, and separate from the other’.*

62M Oey ot bl ol

The Hanafts have interpreted this hadith to the effect that al-Daylami
was aiked to contract a new marriage with one of the sister, if they
happened to have been married in 2 single contract of mamage but,
if they had been marned in two separate contracts, to retain the one
whom he mamied fint, without a contract. The Hanafls have resorted
to this ta'wfl apparently because of the Shari'ah rule which does not
permit two women to be married in a single contract. If this were to
be the case, then a new contract would be necessary with the one
who was to be retuned

However, this is regarded as a remote interpretation, one which is
not supported by the wording of the hadith. Besides, al-Laylaml was a
new convert to Islam who could not be presumed to be knowledge
able of the rules of Shariah. Had the Prophet intended the meaning
that the Hanafis have given to the hadith, the Prophet would have
clarified i himself. As it is, the Hanafi interpretation cannot be
saitained by the contents of the hadith, which is why it is regarded
as far-fetched.”

Ta’wAl is relewant and correct ifit can be accepted without recourse
to forced and far-fetched arguments. The interpretation, for example,
which the majority of “ulamd" have given to the phrase “idhd qumtum
ile'l-salah’ (°when you stand for prayers’) in the Qur'dnic text concem~
ing the requirement of ablution for salah (al-Ma’idah, $26) to mean
‘when you intend to pray’ is relevant and correct; for without it, there
would be some irregularity in the undersaanding of the text. The passage
under discusion reads, in the relevant part: 'O believers, when you
stand for salah, wash your faces and your hands up to the elbows.”

pSapry bylnels ia Sf pcad Hp hal onl Yl
PM St Sealy

“When you stand for salah’ here is understood to mean “

hen you

intend to perform salah’. The fact that ablution is required before
entering the yaldh is the proper interpretation of the text, as the

122 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Rules of Interpretation I: Deducing the Law from its Sources

Lawgiver could not be said to have required the faithfal to perform
the ablution after having started the salah."

To set a total ban on fa'wil, and to always try to follow the literal
meaning of the Qur'in and Sunnah, which is what the Zahiris have
tended to do, is likely to lead to a departure from the spirit of the law
and its general purpose. It is, on the other hand, equally valid to say
that interpretation must be attempted carefully and only when it is
necessary and justified, for otherwise the law could be subjected to
arbitrariness and abuse, A correct interpretation is one for which
support can be found in the musis, in analogy (qiydi), oF in the general
principles of the law, Normally a correct interpretation does not
conflict with the explicit injunctions of the law, and its accuracy is
bome out by the contents of the text itself?

re

From the viewpoint of clarity (wudib), words are divided into the
ewo main categories of clear and unclear words
4 concept that is intelligible without recourse to interpretation. A
ruling which is communicated in clear words constitutes the basis of
obligation, without any recourse to ta'wfl. A word is unclear, on the
other hand, when it lacks the fo
conveys is ambiguous/incomplet

assification (A): Clear and Unclear Words

A clear word conveys

cgoing qualities: the meaning it

and requires clarification, An
ambiguous text that is in need of clanification cannot constitute the
basis of action, The clarification so required can only be supplied
through extraneous evidence, for the text itself is deficient and fails
to convey a complete meaning without recourse to evidence outside
its contents. A clear text, on the other hand, is self-contained, and
needs no recourse to extraneous evidence. From the viewpoint of the
degree of clarity and conceptual strength, clear words are divided into
four types in a ranking which starts with the least clear, namely the
manifest (zdhin) and then the explicit (nays), which commands greater
clarity than the zdhir, This is followed by the unequivocal (mufassar)
and finally the perspicuous (mubkam), which ranks highest in respect
of clarity, And then from the viewpoint of the degree of ambiguity in
their meaning, words are classified, once again, into four types which
start with the least ambiguous and end with the most ambiguous in
the range.

As to unclear words (al-alfiz ghayr al-wadibal), these are words
which do not by themselves convey a clear meaning without the aid
of additional evidence that may be furnished by the Lawgiver Himself,

or by the mujtakid. If the inherent ambiguity is clarified by means of
research and ijtihdd, the words are classified as khaft (obscure) and
mushkil (difficult). But when the ambiguity can only be removed
by an explanation which is furnished by the Lawgiver, the word is
classified either as mujmal (ambivalent) or musashabit (intricate)."° This
is not to say, however, that the jjtihad does not apply to mujmal, for
even in cases where an authoritative explanation to mujmal can only
be provided by the Lawgiver, the ‘ulama’ have often given an ijtihad.
Unclear words occur in four varieties

We shall begin with an exposition of the clear words and then
discuss the unclear words.

IL1 The Zahir and the Nass

The manifest (zahit) is a word which has a clear meaning and yet is
‘open to fa’wil, primarily because the meaning it conveys is not in
harmony with the context in which it occurs. It is a word that has a
Kteral/original meaning of its own but which leaves open the possi
bility of an alternative interpretation. For example, the word ‘lion’ in
the sentence ‘I saw a lion’ is clear enough, but it is possible, although
Jess likely, that the speaker might have meant a brave man. Zahir has
been defined as a word or words which convey a clear meaning,
while this meaning is not the principal theme of the text in which
they appear."

‘When a word conveys a clear meaning that is also in harmony with
the context in which it appears, and yet is still open to t'w#l, it is
classified as nass, The distinction between the zihir and ass mainly
depends on their relationship with the context in which they occur
zahir and nass both denote clear words, but the two differ in that the
former does not constitute the dominant theme of the text whereas
the nays does. These may be illustrated in the Qur’anic text concem-
ing polygamy, as follows: ‘And if you fear that you cannot treat the
orphans justly, then marry of the women who seem good to you,
two, three or four’ (al-Nisi’, 4:3)

pS Ab byob ote gy Lye YE pci Oly
Ebrg Sy ge clad oy»

‘Two points constitute the principal theme of this dyah, one of which
is that polygamy is permissible, and the other that it must be limited

124 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Rules of Interpretation I: Deducing the Law from its Sources 125

to the maximum of four. We may say therefore that these are the
explicit rulings (nas) of this text. But this text also establishes the
legality of marriage between men and women, especially in the part
where it reads ‘marry of the women who seem good to you
However, legalising marriage is not the principal theme of this
text, but only a subsidiary point. The main theme is the mass and the
incidental point is the zahir.'*

The effect of the zahir and the nass is that their obvious meanings
must be followed and action upon them is obligatory unless there is
evidence to warrant recourse to ta’wil, that is, to a different inter
pretation which might be in greater harmony with the intention of
the Lawgiver. For the basic rules of interpretation require that the
obvious meanings of words should be accepted and followed unless
thei
When we say that the zdhir is open to ta’wfl, it means that when the
zahir is general, it may be specified, and when it is absolute, it may
be restricted and qualified. Similarly, the literal meaning of the zahir
may be abandoned in favour of a metaphorical meaning. And, finally,
the zdhir is susceptible to abrogation which, in the case of the Qur'sn
and Sunnah, could only occur during the lifetime of the Prophet. An
example of the zahir which is initially conveyed in absolute terms but
has subsequently been qualified is the Qur'lnic text (al-Nis’, 4:24)
which spells out the prohibited degrees of relationship in marriage.
The text then continues, ‘And lawful to you are women other than
these, provided you seck them by means of your wealth and marry
them properly.’

creat SU pl 1a OF SIS oly be SI Joly

The passage preceding this dyah refers to a number of female rela-
tives with whom marriage is forbidden, but there is no reference
anywhere in this passage either to polygamry or to marriage with the
paternal and maternal aunt of one’s wife. The apparent or zdhir mean-
ing of this passage, especially in the part where it reads ‘and lawful to
you are women other than these’ woulld seem to validate polygamy
beyond the limit of four, and also marriage to the paternal and
maternal aunt of one’s wife. However, the absolute terms of this ayah
have been qualified by another ruling of the Quran (al-Niss', 4:3)
quoted eatlir, which limits polygamy to four. The other qualification
to the text under discussion is provided by the mashhur hadith which
forbids simultaneous marriage with the maternal and paternal aunt of

sa compelling reason for abandoning the obvious meaning.

one’s wife."! This illustration also serves to show an instance of conflict
between the zahir and the nass. Since the second of the two dyit
under discussion is a mass, it is one degree stronger than the zahir and
would therefore prevail. This question of conflicts between the zdhir
and nagg will be further discussed later.

It will be noted that najs, in addition to its technical meaning
which we shall presently elaborate, has a more general meaning
which is commonly used by the fugaha’. In the terminology of figh,
nass means a definitive text or ruling of the Qur'an or the Sunnah
Thus it is said that this or that ruling is a nays, which means that itis
a definitive injunction of the Qur'an or Sunnah, But nass as opposed
to giihir denotes a word of words that convey a clear meaning, and
also represents the principal theme of the text in which it occurs. An
example of najg in the Qur'an is the Qur'anic text on the priority of
debts and bequests over inheritance in the administration of an estate
The relevant dyah assigns specific shares to a number of heirs and th
states that the distribution of shares in all cases is to take place ‘after
the payment of legacies and debts’ (al-Nisi’, 4:11). Similarly, the
Quranic text which provides that ‘unlawful to you are the dead
carcass and blood’ (al-Ma’idah, 5:3)

pally aa pole coe >

is a mass on the prohibition of these items for human consumption:
As already stated, the nas, like the zihir, is open to ta'ufl and abro-
gation. For example, the absolute terms of the dyah which we just
quoted on the prohibition of dead carcasses and blood have been
qualified ebewhere in the Qur'an where ‘blood’ has been qualified
a8 ‘blood shed forth’ (al-An'im, 6:145). Similarly, there is a badith
which permits consumption of two types of dead carcasses, namely
fish and locusts." Another example of the najy which has been
subjected to 1a'wil is the hadith conceming the legal alms (zakih) of
livestock, which simply states that this shall be ‘one in every forty
sheep’

ons a

The obvious nass of this hadith admittedly requires that the animal
itself should be given in zakih, But it would seem in harmony with
the basic purpose of the law.t0 say that either the sheep or theit equiv-
alent monetary value may be given. The purpose of zakah is to satisfy

126 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Rules of Interpretation I: Deducing the Law from its Sources 127

the needs of the poor, and this could equally be done by giving them
the equivalent amount of money; itis even likely that they might pre!
this."® The Hanafis have offered a similar interpretation for two other
Qur'inic dyar, ane on the expiation of futile oaths, and the other on
the expiation of deliberate breaking of the fast during Ramadin. The
first is to feeding ten poor persons (al-M'idah, §-92), and the second
is to feed sixty such persons (al-Mujidilah, 58:4). The Hanafls have
held that this text can be implemented either by feeding ten needy
persons or by feeding one such person on ten occasions. Similarly,
the provision in the second dyah may be understood, according to

the Hanafls, to mean feeding sixty poor persons, of one such person
sixty times

As already stated, nass is stronger than zahir, and, should there be a
conflict between them, the former prevails over the latter. This may be
illustrated in the following two Qur'inic passages, one of which is a
ass in regard to the prohibition of wine, and the other a zdhir in
regard to the permissibility of eating and drinking in general. ‘The wo
passages are as follows

© believers! tatoxicants, games of chance and sacrificing to stone and a

works of Sun, Se avoid them (2EMY'idah, 529
PVG y Lay aly at LY Leet oll Ugly
opal Oat Jae oe ay

‘Qn thone who believe and do good deeds there is no blame for what they consume
while they keep their duty and believe and do good deeds (al-Md"idah, $295)

LB clk SULA Ley oT oi le
La glee s Laly Lyd Le 13] yea’

The najs in the first éyah is the prohibition of wine, which is the main
purpose and theme of the text. The zathir in the second dyah is the
permissibility of eating and drinking without restriction. The main
purpose of the second dyah is, however, to accentuate the virtue of
piety (taqul) in that tagui is not a question of austerity with regard

to food, it is rather a matter of God-consciousness and good deeds.
‘There is an apparent conflict between the two dyar but, since the

prohibition of wine is established in the nass, and the permissibility
regarding food and drink is in the form of zahir, the nays prevails over
the zahir."*

To give an example of shir in modern criminal law, we may refer
to the word ‘night’ which occurs in many statutes in connection with
theft. When theft is committed ar night, it carries a heavier penalty
Now if one takes the manifest meaning of ‘night’, then it means the
period between sunset and sunrise. However, this meaning may not
be totally harmonious with the purpose of the law, What is really
meant by ‘night’ is the dark of the night, which is an accentuating
circumstance in regard to theft. Here the meaning of the zdhir is
qualified with reference to the rational purpose of the law and the
f the offence in question.

nature

1.2 Unequivocal (Mufassa?) and Perspicuous (Mulkam)

Mufassar or mubayyan is a word or a text whose meaning is completely
clear and is, at the same time, in harmony with the context in which
it appears. Because of this and the high level of clanty in the meaning
of mufassar, there is no need for recourse to ta’wil, But the mufassar
may still be open to abrogation which might, in reference to the
Qor'in and Sunnah, have taken place during the lifetime of the
Prophet. The idea of the mufassar, as the word itself implies, is that
the text explains itself, The Lawgiver has, in other words, explained
His own intentions with complete clarity, and the occasion for sa'wil
does not arise. The mufassar occurs in two varieties, one being the
text which is self-explained, o mufassar bidharih; the other is when
the ambiguity in one text is clarified and explained by another. This
is known as mufassar bighayrih, in which case the two texts become
an integral part of one another and the two combine to constitute 3
mufassar” A text of the Qur’in may thus be explained by another
text or by the Sunnah and the latter may be either verbal Sunnah or
actual Sunnah consisting of practical illustration, Instances of conflict
between the verbal and actual Sunnah are not expected to be
frequent; should there be any such conflict, the verbal Sunnah takes
priority over the actual, although there is an opinion that prefers the
actual Sunnah to the verbal. However, the latter in time will be
preferred in any case ~ in the event, that is, when the chronological
order between them can be ascertained, An example of mufassar in
the Qur'an is the text in sira al-Tawbah (9:36) which exhorts the
believers to "fight all the pagans as they fight you all’

128 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Rules of Interpretation I: Deducing the Law from its Sources 129

y LS BIS GS ANU;

WS pF yh

The word ‘kaffah’, which occurs twice in this text, precludes the
possibility of applying specification (takhyiy) to the words preceding
it, namely the pagans (mushrikin). Another example of mufassar or

mubayyan bidhatih is the text on the punishment of adultery, which

reads: ‘The adulterer, whether a woman or a man, flog each of them
a hundeed stripes’ (al-Nar, 24:2)

lor Ale Lager aly JS bpilonld gh jly ast

The text here is self-explanatory and specific regarding both the offence
and the number of stripes by which it is punishable, and it is there

fore in no need of ta'wil. This form of mufassar occun in p
modem statute with regard to specified crimes and their penalties, but
also with regard to civil liabilities, the payment of damages, and debts
The words of the statute are often self-explained and definite so as
to preclude sa'wfl. But the basic function of the explanation that the
text itself provides is concemed with that part of the text which is
ambivalent (mujmal) and needs to be clarified. When the necessary
explanation is provided, the ambiguity is removed and the text
becomes a mufassar. An example of this is the phrase ‘laylah al-gade?
Cnight of gadr’) in the following Qur'3nic passage. The phrase is
ambiguous to begin with, but is then explained: “We sent it {the
Qur'in} down on the Night of Qadr. What will make you realise
what the Night of Qadg is like?,..[t is the night in which angels and
the spirit descend! (al-Qadr, 97:1~4)

a) Jal SL Sal bey jad aly g old pf yy
Yd cathy SOM Sp gt al p> pl

The text thus explains the ‘laylah al-gadr’, and as a result of the
explanation so provided, the text becomes self-explained, oF
mufassar. Hence there is no need for recourse to ta'wil, Sometimes
the ambiguous of the Qur’tn is clarified by the Sunnah, and when
this is the case, the clarification given by the Sunnah becomes an
integral part of the Qur’in. There are numerous examples of
this, such as the words salah, zakah, ba, riba, which occur in the
following ayae:

Pexform the sth and pay the =ahah (ab-taqarsh, 2:3)
AS WT y Dall awl y

God has enjoined upon people the pilgrimage of haji, «0 he performed by all who

ave capable of it (Al "imran, p97

Dane ANG Uatel ope Coll em ttl ide aby

God has per

nd tale and prohibited wwury (al-Baqarah, >

UN pms gat St ts

The juridical meanings of saldh, zakah, hajj and ribd could not be
known from the brief references that are made to them in these dyit
Hence the Prophet provided the necessary explanation in the form
of both verbal and practical instructions. In this way the text that was
initially ambivalent (mujmal) became mufassar. With regard to salih,
for example, the Prophet instructed his followers to ‘perform the salah
the way you see me performing it’

aghal gyaaly US tyke

and regarding the hajj he ordered them to “take from me the rituals

of the hajf'.*"
wp Semis Zo phot

There are also many hadith which explain the Quranic prohibition
Of riba in specific and elaborate detail. In all of thee cases, the Qur'an
has been explained and clarified by the Sunnah, which means that
they are all examples of mubayyan or mufassar bighayrit

The value (hukm) of the mufassaris that acting upon it is obligatory.
The clear meaning of a mufassar is not open to interpreation and
unless it has been abrogated, and the obvious text must be followed.
But since abrogation of the Qur'an and Swnmah discontinued upon
the demise of the Prophet, to all intents and purposes, the mufassar is
equivalent to the perspicuous (mubkam), which is the last in the range
of clear words and is not open to any change

130 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Rules of Interpretation I: Deducing the Law from its Sources 141

Specific words (al-alftz ah) which are not open to ta'wil or
any change in their primary meanings are in the nature of mu

Thus the Quranic punishment of cighty lashes for slanderous
accusation (gadhf) in sOra al-Nar (24:4) tance
(al-Nisi’, 4:11) which prescribes specific shares for le

of fixed numbers which rule out the possibility of

or the dyah of

| heirs, consist

wil, They all

partake of the qualities of mufassar-*

Since mufassar is one degree stronger than nas, in the event of a
conflict between them, the mufassar prevails. This can be illustrated in
the two hadith concerning the ablution of a woman who experiences
¢ days

¢ ablution

irregular menstruations that last longer than the expected
‘or so: she is required to perform the saldh; as for
(wuda’) for saldh, according to one hadith, ‘A woman in prolonged
menstruations must make a fresh wudil’ for every salah.’

ae JSS Uo yt tale
And according to another hadith, “A woman in prolonged menstru-
ation must make a fresh wudii' at the time of every salah."

Be JF ody Gs dot

The first hadith is a nass on the requirement of a fresh wudi’ for every
salah, but the second hadith is a mufassar which does not admit tau‘
The first hadith is not completely categorical as to whether ‘every
salah’ applies to both obligatory and supererogatory (fand’id wa-nasiifil)
types of jalth. Supposing that they are both performed at the same time,
would a separate wudii’ be required for each? But this ambiguity does
not arise under the second hadith as the latter provides complete
instruction: a wudi is only required at the time of every sali and the
same wuda' 1s sufficient for any number of salah at that particular time.”*

Words and sentences whose meaning is clear beyond doubs and
are not open to fa’wil and abrogation are called mulam, An example
of this is the frequently occurring Qur’snic statement that ‘God knows
all things’. This kind of statement cannot be abrogated, either in the
lifetime of the Prophet, or after his demise.” The text may sometimes
explain itself in terms that would preclude the possibility of abrogation.
An cxample of this is the Qur'dnic address to the believers concern-
ing the wives of the Prophet: ‘It is not right for you to annoy the
Messenger of God; nor should you ever marry his widows after him.
For that is truly an enormity in God’s sight’ (al-Abzib, 33:53).

anlgit LaSe of Vy SI J, Lag of SoTL;
Lager Bi ace OS SUS of Lal odes oy

The prohibition here is emphasised by the word abadan (never,
ever) which renders it mubkam, thereby precluding the possibility of
abrogation. The mubkam is, in reality, nothing other than mufassar
with one difference, which is that mubkam is not open to abrogation.
An example of multkam in the Sunnak is the ruling concerning jihad
which provides that ‘jihad remains valid till the day of resurrection’.”

LB oye II ee 2G

The ‘ulama’ of wsdl have given the Qur'inic ayah on slanderous
accusation as another example of mubkam, despite some differences
of interpretation that have arisen over it among the Hanafl and Shafi‘t
jurists. The dyah provides, concerning persons who are convicted and
punished for slanderous accusation (gadhf): "And accept not their
testimony ever, for such people are transgressors’ (al-NOr, 24:4)

Opheim tld sly hl dalge ob Mkts Vy

Once again, the occurrence of abadan (‘forever’) in this text renders it
mubkam and precludes all possibility of abrogation. The Hanafls have
held that the express terms of this dyah admit no exception. A qidhif,
that is, a slanderous accuser, may never be admitted as a witness even
if he repents. But according to the Shafi'ls, if the gidhif repents after
punishment, he may be admitted as a witness. The reason for this excep-
tion, according to the Shafi‘, is given in the subsequent portion of
the same text, which reads: ‘Unless they repent afterwards, and rectify
themselves.’ The grounds of these different interpretations need not
be elaborated here, Suffice it to point out that the differences are over
the understanding of the pronouns in the text, whether they refer
both to the gidhif and transgresson, or to the latter only, There is no
difference of opinion over the basic punishment of gadhf, which is
cighty lashes as the text provides, but only with regard to the additional
penalty disqualifying them as witnesses forever. It would thus appear
thar these differences fall within the scope of tafiir rather than that of
ta’wil.

The mubkam is not open to abrogation. This may be indicated in

132 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Rules of Interpretation I: Deducing the Law from its Sources 133

going examples, or it may be due to the
m bi-

bi-ghayrih, or

the text itself, as in the for

The former is known as mul
nd the second as mubles

nce of an at

agating te:

nih, or mubkam by itself
another factor."

the foregoing distinction between the fo

muhkam becau

The purpose rypes
of clear words is to identify their propensity or otherwise to ta'wil,
that is, of admitting a meaning other than their « and
whether or not they are open to abrogation. Ifa word is not open to
cither of these possibilities, it would follow that it retains its original
erpretation. The present
4s, defines the scope of ta'wil in that the latter

ious meanin;

or primary meaning and admits no other in
in other we
onlly to the
muhkam. The next purpose of this ¢lassification is to provide guidelines
for resolving possible conflicts between the various categories of words,
In this way, an order of priority is established by which the mukam
prevails over the other three varieties of clear words and the mufassar
takes priority over the ass, and so on, But this order of priority
applies only when the two conflicting texts both occur in the Q
in, say, the ahir of the Qur'dn
and the nass of the Sunnah, the former would prevail despite its being
one degree weaker in the order of priority. This may be illustrated
by the dyah of the Que'dn concering guardianship in marriage, which
is of the nature of thir. The dyah provides: ‘If he has divorced her,
then she is not lawful to him until she marries [hattd tankiha} another
man’ (al-Bagarah, 2:230)

gb bey} CSS om JE Weill op

This text is gihir in respect of guardianship as its principal theme is
divorce, not guardianship. From the Arabic form of the word *tankiha’
in this text, the Hanafis have drawn the additional conclusion that an
adult woman can contract her own marriage, without the presence
of'a guardian, However, there is a hadith on the subject of guardian
ship which is in the nature of nays, which provides that ‘there shall
be no marriage without a guardian [walf]'

sda WM cl y

classification

is applicabl it and nays but not tw the mufassar and

an.
However, when a conflict arises beew

This hadith is more specific on the point that 2 Woman must be
contracted in marriage by her guardian. Notwithstanding this,
however, the zahir of the Que’an is given priority, by

the Hanafls at

least, over the mass of the hadith. The majority of ‘wlama’ have,
however, followed the ruling of the Sunnah on this point.”

I1_3 The Obscure (Khafi)

Khaft denotes a word which has a basic meaning but is partially
ambiguous in respect of some of the individual cases to which it is
applied: the word is consequently obscure with regard to these
only. The ambiguity in khafl needs to be clarified by extrancous
evidence, which is often a matter of research and {jtihdd. An example
of khaft is the word ‘thief (sirig), which has a basic meaning, but
which, when it is applied to cases such as that of a pickpocket, or
a person who steals the shrouds of the dead, does not make it
immediately clear whether the punishment of theft can be applied to
or not. The basic ingredients of theft are present in this activity, but
the fact that the pickpocket uses a kind of skill in taking the assets of
a person in wakefulness makes it somewhat different from theft
Similarly, it is not certain whether “thief includes a mabbash, that is,
one who steals the shrouds of the dead, since a shroud is not a guarded
property (mal mubraz). Imam Shifi'l and Abo Yasuf would apply the
prescribed penalty of theft to the nabbish, whereas the majority of
‘ulama” only make him liable to the discretionary punishment of ta’ zr
There is also an ijtihadi opinion which authorises the application of
the hadd of theft to the pickpocket."

The word ‘gasif’ (killer) in the hadith that ‘the killer shall not
inherit’™

pill oY

is also khaft in respect of certain varieties of killing such as “uninten-
tional killing’ (qatal al-khaya’). The Malikis have held that erroneous
killing is not included in the meaning of this hadith, whereas according,
to the Hanafis, it is in the interest of safeguarding the lives of the
people to include erroneous killing within the meaning of this hadith.»
To remove the ambiguity in khafi is usually a matter of ijtihad, which
would explain why there are divergent rulings on each of the fore~
going examples. It is the duty of the mujtakid to exert himself so as
to clarify the ambiguity in the khaff before it can constitute the basis
of a judicial order.

134 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Rules of Interpretation 1: Deducing the Law from its Sources 135

IL.4 The Difficult (Mushkil)
Mus

ambiguity can only be removed by mean:
il differs from the khaff in that the
which is generally clear, whereas the mushkil is inherently ambiguous.

jenotes a word which is inherently ambiguous, and whose
of research and ijtihad, The
has a basic meaning

There are, for example, words which have m
and, when they occur in a text, the text is un
or the other of those
sfra al-Baqarah (2:228) is mushkil as it has two distinct meanings:
menstruation (hayd) and the clean period between two menstruations
(juht). Whichever of these is taken, the ruling of the text will differ
accordingly, Imam Shafi'l and a number of other jurists have adopted
the latter, whereas the Hanafis and others have adopted the former

than one meaning
with regard to one

neanings, Thus the word qur’ which occurs in

as the correct meaning of qur

Sometimes the difficulty ari
of a conflicting text. Althou
clear, as they stand alone, they become difficult when one attempts
to reconcile them, This may be illustrated in the following two dy,
one of which states: ‘Whatever good that befalls you is from God, and
whatever misfortune that happens to you, is from yourself” (al-Nist’,
4:79).

ng in the text is caused by the existence
h cach of the two texts may be fairly

Le pad tte oe bbe bey bh oad te oy Uhl Le

Elsewhere we read in sGra Al ‘Imarin (3:154): "Say that the matter is
all in God's hands,

Sas Yio f

A similar difficulty is noted in the following two passages. According
to the fins, ‘Verily God does not command obscenity’ (al-A'rif, 7228),

slondly pl ¥ dt of

And then we read in sara Bani [sra'll (17:16): ‘When We decide to
destroy a population, We fint send a definite order to theit privileged
ones, and when they transgress, the word is proven against them.
Then We destroy them with utter destruction.’

Go gd Lents Yam U play g etd ol Gas! lily
Vpatd Lal add J pill Yale

Could it be said that total destruction is a form of evil? There is no
certainty as to the correct meaning of mushdil, as it is inherently
ambiguous. Any explanation provided by the mujtahid is bound to be
speculative. The mujtahid is nevertheless bound to exert himself in
order to discover the correct meaning of mushkil before it can’ be
implemented and adopted as a basis of action.

IL.s The Ambivalent (Mujmal)

Mujmal denotes a word or text which is inherently unclear and gives
no indication as to its precise meaning. The cause of ambiguity in
mujmal is inherent in the locution itself. A word may be a homonym
with more than one meaning, and there is no indication as to which
might be the correct one, or altematively the Lawgiver has given it
a meaning other than its literal one, or the word may be totally un-
familiar. In each of these eventualities, there is no way of removing
the ambiguity without recourse to the explanation that the Lawgiver
has furnished Himself, for He introduced the ambiguous word in the
first place, Words that have been used in a transferred sense, that
is, for a meaning other than their literal one, in order to convey a
technical or a juridical concept, fall into the category of mujmal, For
example, expressions such as salah, iba’, hajj, and siydm have all lost
their literal meanings due to the fact that the Lawgiver has used them
for purposes other than those which they originally conveyed. Each
of these words has a literal meaning, but since their technical mean-
ing is so radically different from the literal, the link between them is
Jost and the technical meaning becomes totally dominant. A word of
this type remains ambivalent until it is clarified by the Lawgiver
Himself. The juridical meaning of all the Qur’inic words cited above
has been explained by the Prophet, in which case, they cease to be
ambivalent. This is because when the Lawgiver provides the neces-
sary explanation, the mujmal is explained and turns into wmfassar,
Ambiguity may also arise as a result of uncertainty in the correct
meaning of the pronouns and adjectives, For instance, when a pronoun
or adjective occurs in a senteice in such a way that it can refer to more
than one subject, it renders the text a mujmal and cannot, therefore,

Rules of Interpretation I; Deducing the Law from its Sources 137

136 PRINCIPLES OF ISLAMIC JURISPRUDENCE

necessary clarification is

rding the exact

Ambiguity may also ari

implication of part

‘atihah

withou
WASH Ae YY De Y

can mean that a salah is rendered null and void or that it is incomplete.
The juridical yalue of the particle Ja is thus unclear and the hadith is

therefore in need of clarification,

Ambiguity can also arise in acts as well as words, and we refer here
particularly to the Sunnah, where we may have two versions of how
the P

requires clarification. The report, for example, that the Prophet com-

yphet might have acted in a way that is not self-evident and

bined (jamd'a) obligatory prayer while travelling is a mujmal in that
it does not tell us the length of the joumey and whether a short
journey as well as a long one may qualify for the purposes of com-
bining prayers. Hence the act remains ambiguous unless one finds
additional information that might provide the necessary clarification.

Most of the examples given so far are of mujmal as singular words,
but ambiguity may also arise in a context as a result of the combina-
tion of words. Note, for example, the Qur'dnic text referring to the
dower in the event of divorce, which states that it may be waived by
‘one ‘in whose hands is the marriage tie’ (al-Bagarah, 2:237). The text
can thus refer either to the spouse or to the guardian, Imam Shafi‘T
preferred the first meaning but Imam Malik preferred the second. To
give another example, we may refer to the hadith which declares that
‘acts are as good as the intentions behind them

woldy Je Uy

Al-Zarkashi has recorded different opinions on this hadith to the effect
that some have held it to be mujmal, yet there is some ambiguity as
to the precise value that it may be said to convey. Does it mean, for
example, that an act, say, of Worship, without intent (niyyah) is invalid
or merely imperfect? The ‘ulama” seem to be divided over these two
meanings.”

The mujmal may sometimes be an unfamiliar word which is
inherently vague, but is clarified by the text where it occurs. For
example ‘al-gini ah’ and "hala’ which occur in the Qur’inie passages
as follows:

sunsing blow fal-gin'ehj! What is the stunning: blow? What will make

you realise what the sunning blow in? It is the Day

1 which the people wil

like scattered movts: and the m

ins wil he like catded wool (sl-Qn
OS py 6 de, Sal bey cde Wi Le ae lil

PM pS SH OSS gc gt ah aU tl

Truly man was created te

thu, and he withholds w

alee {hali“an|, 40 he panicr whenever any ¢

formane befalls hitn (al-Ms‘3ni, 70;19-24

done lily Leger 2 ae 3) Lela gle OLY! of

Ley ght

The ambivalent words in these passages have thus been explained and
the vext has, as a result, become self-explained, or mufassar. The mujmal
tums into the mufassar only when the clarification that the Lawgiver
provides is complete; but when i is incomplete, or insufficient co
remove the ambiguity, the mujmal turns into a mushkil, which is then
open to research and ijtihdd, An example of this is the word riba which
occurs in the Qur'an (al-Baqarah, 2:275) in the form of a mujmal, as
a

when it reads: ‘God permitted sale and prohibited rib

Ud ems eel Sl Lely

where the last word in this text literally meaning ‘increase’, Since not
every increase or profit is unlawful, the text remains ambivalent as to
what type of increase it intends to forbid. The Prophet has clarified
the basic concept of ribi in the badith which specifies six items (gold,
silver, wheat, barley, sait and dates) to which the prohibition applies.
But this explanation is insufficient in its detail in that it leaves room
for reflection and enquiry as to the rationale of the text in respect of
extending the same rule to similar commodities. The hadith thus opens
the way to further itihdd and analogy with the goods it has specitied.”®
With regard co the value (/km) of the mujmal, the general rule is that
it is one of suspension (tawagguf) until the ambiguity is removed. But
there is an opinion that if ambiguity is due to a plurality of meanings,

138 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Rules of Interpretation I: Deducing the Law from its Sources. 139

hen it

and there is some indication of evidence in support of c

should be acted upon. If, for example, the social custom prefers one of

upheld. Should there be no such

gs, then it should

the various meant

evidence available, then the clarification must be attempted through
ijtihad, Ifthe various meanings of a mujmal are not incompatible, then
any of all of them may be applied. The dysh, for example, which

states that ‘whoever is slain unjustly, we have indeed given authority

to his heir’ (al-Isra’, 17:33)

UlbaLe 4 Law id Lgl J cry

ning of ‘authority’, whether it means

is ambiguous as to the mea
retaliation, blood-money or power; it may m
Shafi't has held it to be a reference to retaliation.

ean all of these, Imam

there is no mujmal

The view has prevailed among the ‘ulamy
left unclarified in the Qur’in following the demise of the Prophet
Al-Juwayni stated the best view on this point, which is that no mujmal

is left unclarified in the ares of decisive injunctions, the ableim. Ic is

possible, according to this view, that mujmal may have remained

unclarified outside the sphere of the alsledm.”

IL.6 The Intricate (Mutashabih)

This denotes a word whose meaning is a total mystery. There are words
in the Qur'an whose meaning is not known at all. Neither the words
themselves nor the text in which they occur provide any indication
as to their meaning, The mutashabih as such docs not occur in the
Jegal nusis, but it does occur in other contexts. Some of the siiras of
the Qur'dn begin with what is called the mugatta'at, that is, abbrevi-
whose meaning is a total mystery. Expressions such as
alif-lim-mim, ya-sin, ba-mim and many others which occur on twenty-
nine occasions in the Qur’in, ate all classified as mutashabih, Some
lama’ have held the view that the mugatja'at are meant to exemplify
the inimitable qualities of the Qur’in, while others maintain that they
are not abbreviations but symbols and names of God; that they have
numerical significance; and that they are used to attract the attention
of the audience. According to yet another view, the mutashabih in the
Qur'an is meant as a reminder of limitations in the knowledge of
the believer, who is made to realise that the unseen realities are too
vast to be comprehended by reason." There is also a view that the
abbreviated letters are names of the chapters of the Qur'in, and,

ated letters

according to another view, these are the secret messages that were
meant only for the Prophet Mubammad.

Some ‘ulama’, including Ibn Hazm al-Zahiri, have held the view
that, with the exception of the mugarfa'it, there is no mutashabih in
the Qur'in. Others have maintained that the pasages of the Qur’sn
which draw resemblances between God and man are also in the
nature of mutashabih.* Thus the dyit which states that ‘the hand of
God is over their hands’ (al-Fath, 48:10)

peel Gp BI

and the reference to the Prophet Noah where we read: ‘Build a ship
under Our eyes and Our inspiration’ (Had, 11:37)

Lam yy el llall poly

and in sra al-Rahmin (55:27) where the text runs "and the face of
your Lord will abide forever’

rg Any

are instances of mutashabih as their precise meaning cannot be known.
Other words and phrases such as al-nib (soul), makr Allah (God's trick)
and al-istiwi ‘ala’l-'arsh (God's seating on the throne) have also been
identified as mutashdbih, One can of coune draw an appropriate meta

phorical meaning in each case, which is what the Mu‘tazilah have
attempted, but this is neither satisfactory nor certain, To say that ‘hand
metaphorically means power, and ‘eyes’ means supervision is no more
than a conjecture, for we do not know the subject of our comparison
The Quen also tells us that “dhere is nothing like Him’ (al-ShOrl, 42:11),

S aes
Since the Lawgiver has not explained these similitudes to us, they

remain unintelligible. The existence of the mutashabih in the Qur'an
is proven by the testimony of the Qur'an itself, which is as follows

He ix is who has sent down to you the Book Some af it consist of muihuml,
while other are mutachabihay. Thote who have perversity in their heart, in cheir
quest for vedition, follow the muushiiwha and search for ns hidden meanings, But
no one knows those meanings, except God and those who are firmly grounded
in knowledge. (A) “ein, 3°7)

140 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Ph eh LS! OUT ae ASI thle Sf csi ye
Od fej Asli Q geil Ub olslew aly tsi
ae Li play Ley aby gli clic y dari elias) aie ghar Le

all 9 Opel Jy ait 9}

The ‘ulama’ have differed in their understanding of this dyah, particu-
larly with regard to the definition of muhke and hadbihar, But
the correct view is that mubkam is that part of the Qur'in which is

hot open to conjecture and doubt, whereas the mutashabih is. With
regard to the letters which appear at the beginning of siras, it has
been suggested that they are the names of the siras in which they
occur. As for the question of whether acting upon the mutashdbih is
permissible or not, there is disagreement, but the correct view is that
no one may act upon it. This is so, not because the mutashabih has no
meaning, but because the correct meaning is not known to any human
being.’ There is no doubt that all the mutashdbihdr have a meaning.
but it is only known to God, and we must not impose our estimations
on the words of God in areas where no indication is available to reveal
the correct meaning to us.‘

II, Classification (B): The “Amm (General) and the
Khags (Specific)
From the viewpoint of scope, words are classified into the ‘general’ and
the ‘specific’. This is basically a conceptual distinction that is not always
obvious in the grammatical forms of words, although the ‘wlama" have
identified certain linguistic pattems of words which assist us in differ
entiating the ‘dmm from the khalys

Amm may be defined as a word which applies to many things, not
limited in number, and includes everything to which it is applicable.*?
An example of this is the word ‘insdn’ (human being) in the Que’anic
dyah, ‘verily the human being is in loss’ (al~"Agr, 103:2)

re A Os! of

or the command, ‘whoever enters this house, give him a dirham’, In

Rules of Interpretation I: Deducing the Law from its Sources 141

both examples the application of “human being’ and ‘whoever’ is
general and includes every human being without any limitation,
Amm is basically 4 word that has a single meaning, but applies to an
unlimited number without any restrictions. The word is thus not
confined in its application, even if in reality it applies only to a limited
number, such as the words skies, sky-scrapers and spaceships, of
which there may only be a limited number in existence. All words,
whether in Arabic or any other language, are basically general, and,
unless they are specified or qualified in some way, they retain their
generality. According to the reported ijmd of the Companions and
the accepted norms of Arabic, the words of the Qur'in and Sunnah
apply in their general capacity unless there is evidence to warrant 4
departure from the general to an alternative meaning. To say that the
dmm bas a single meaning differentiates the ‘dmm from the homonym
(mushtarak) which has more than one meaning. Sumilarly, the statement
that the ‘dmm applies to an unlimited number precludes the khds
from the definition of “mm. A word may be general either by its
form, such as men, students, judges, ete., or by its meaning only, such
as people, community, etc., or by way of substitution, such as by
prefixing pronouns like all, every, entire, ete., to common nouns,
Thus the Qur'inic dyah which provides that ‘every soul shall taste of
death’ (Al Imran, 3:185),

o Wass 8 JS

or the statement that “every contract consists of two parties’ are both
general in their import.

The ‘dmm must include everything to which it is applicable. Thus
when a command is issued in the form of an “damm, it is essential that
it is implemented as such. In this way, if A commands his servant to
give a dirham to everyone who enters his house, the proper fulfilment
of this command would require that the servant does not specify the
purport of A's command to, say, A’s relatives only. Ifthe servant gives
a dirham only to A’s relatives with the explanation that he under-
stood that this was what A had wanted, the explanation would be
unacceptable and the servant would be at fault

When a word is applied to a limited number of things, including
everything to which it can be applied, say one or two or a hundred, it
is referred to as ‘specific’ (Jehasj). A word of this kind may denote a
particular individual such as Abad, or Zayd, or an individual belong-
ing to a certain species such as a horse or a bird, or an individual

PRINCIPLES OF ISLAMIC JURISPRUDENCE

Rules of Interpretation 1: Deducing the Law from its Sources 143

belonging to a genus such as a human being.” As opposed to the
general, the specific word applies to a limited number, be it a genus,
or a species, of a particular individual. So long as it applies to a single
subject, or a specified number thereof, it is khdgs. But if there is no
such limitation in the scope of its application, it is classified as “mm.

Legal rules that are conveyed in specific terms are definite in appli-
cation and are normally not open to 1a’wél, Thus the Qur'inic dyah
which enacts the ‘feeding of ten poor persons’ as the expiation for
futile oaths is specific and definite in that the number ‘ten’ does not
admit of any fa’wil. However, if there are exceptional reasons to
warrant a recourse to fa'wil, then the khdgy may be open to it. For

example, the requirement to feed ten poor persons in the foregoing
dyah has been interpreted by the Hanafls as either feeding ten per
of one such person ten times, The Hanafis have, however, been over-
ruled by the majority on this point who say that the Ahags, as a rule,
is not amenable to fa’wil

In determining the scope of the ‘dmm, reference is made not only
to the rules of the language but also to the usage of the people, and
should there be a conflict between the two, prionty is given to the
latter. The Ambs nonmally use words in their general sense. But this
statement must be qualified by saying that linguistic usage has many
facets. Words are sometimes used in the form of ‘dmm but the purpose
of the speaker may actually be less than “dmm or even khdss. The
precise scope of the ‘dmm has thus to be determined with reference
to the conditions of the speaker and the context of the speech. When,
for example, a person says ‘I honoured the people’ ot ‘I fought the
enemy forces’, he must surely mean only those whom he met. ‘Amm

as a rule applies to all that it includes, especially when it is used on
its own, But when it is used in combination with other words, then
there are two possibilities: either the ‘inn remains as before, or it is
specified by other words.”

It thus appears that there are three types of ‘amm, which are as
follows. Firstly, the ‘dmm that is absolutely general, which may be
indicated by a prefix in the form of a pronoun. Note for example the
Qur'inic dyah, “There is no living creature on earth {uw ma min
dabbatin fi’l-ard) that God does not provide for’ (Had, 11:6)

Yi, Sl le YI L281 Qe oe bey

and ‘We made everything alive from water’ (al-Anbiyt’, 21:30).

SF Fit SS ol yp Lewy

In the first dyah, the prefix ‘md min’ (‘no one’, ‘no living creature’), and
in the second ayah, the word “kulf (i.e. ‘all’ or ‘every’) are expressions
which identify the ‘dm. Both dyat consist of general propositions
which preclude specification of any kind. Hence they remain absolutely
general and include all to which they apply without any exception.
Secondly, there is the “amm which is meant to imply a khiss, This
usage of ‘dmm is also indicated by evidence which suggests that the
dmm comprises some but not absolutely all the individuals to whom
it could possibly apply. An example of this is the word al-nas (the
people) in the Qur'anic dyah, ‘Pilgrimage to the House is a duty owed
to God by all people who are able to undertake it’ (Al ‘Imran, 3:97).

ee a} gle! role ol de dy

Here the indications provided by the text imply that children and
Junatics or anyone who cannot afford to perform the required duty are
not included in the scope of this yah. Thirdly, there is the ‘dmm that is
not accompanied by either of the foregoing two varieties of indications
as to its scope. An example of this is the Qur'anic word al-musallagat
(divorced women) in the text which states that ‘divorced women must
observe three [monthly] courses upon themselves’ (al-Bagarah, 2:228)

69 OM sqnth ona Olilbally

This type of ‘amu is zahir in respect of its generality, which means
that it remains general unless there is evidence to justify specification
(takhsis). In this instance, however, there is another Qur’anic ruling
which qualifies the general requirement of the waiting period, or ‘iddah,
that the divorced women must observe. This ruling occurs in sira

al-Abzib (33:49) which is as follows: ‘O believers! When you enter
the contract of marrage with believing women and then divorce
them before consummating the marriage, they do not have to observe
any “iddah’

pail @ oliegll ASS 13} VeeT sult Ugly
Bae oy tle SIL ape ol JB or

144 PRINCIPLES OF ISLAMIC JURISPRUDENCE

In this way, women who are divorced prior to consummating the
marriage are excluded from the general requirement of the first dyah
The second dyah, in other words, specifies the first.

The
and also by the Sunnah. The general of the Sunnah may likewise be
specified by the Sunnah itself and also by the Qur'an, although there
is some difference of opinion on this last point in tha
of the general is a form of explanation (baysin), and this is the proper
role of the Sunnah tn its reladionship to
The majority of the ‘wlama" are also in agreement that the general rulings
of both the Qur'an and the Sunnah may be specified by consensus
(ima) and even, according to some, by giyis

We have already
its own ruling on the waiting period of divorced women. For
a similar example, we may refer to the general ruling of the text on
fasting which makes fasting obligatory; ‘Whoever of you is present
in the month shall fast therein.’ This is then immediately specified in:
‘Whoever is sick or in journey shall fast a like number of other days
(al-Bagarah, 2:14)

pe ge sf Wan OS ory dana pet Sr tg ond

wl ell gp das

neral of the Qur'an may be specified by the Qur’in itself

specification

¢ Que’3n, but not vice versa

given an example of when the Qur'dn specifies

The sick and the traveller have thus been exempted, by way of takhgls
from the original ruling of the text

To illustrate the specification of the general rulings of the Qur'an
by mutawitir hadith, we refer to the hadith which declares that ‘the
Muslim does not inherit from the disbeliever, nor does the disbeliever
inherit from the Muslin’

at BIS Y) pS LN oy y

This hadith acts as a specifier of the Qur’Snic dyah of inheritance (i.e
4:12-13). This is an example of the verbal Sunnah, For an

example of the actual Sunnah that specifies a general ruling of the
Qué'in, reference may be made to the dyah on the punishment of
adultery in stra al-Nar (24:2), which the ‘sama’ held to have been
specified by the actual Sumnah that enacted death by stoning for
adultery by a married Muslim (i.e. a mubsan). However, there is some
doubt in establishing the chronological order of these two rulings. If

Rules of Interpretation I: Deducing the Law from its Sources 145

it is established thar the ruling in sira al-Nar was revealed after the
punishment of stoning, then it may be in order to say that the Qur'an
actually abrogated the practical Sunnah and enacted a general punish-
ment of one hundred lashes for all cases of zind. Al-Bukhirt recorded
a hadith in which a prominent Companion, ‘Abd Allah ibn Awfi,
was asked the question as to whether the ruling in sfira al-Nar came
before or after the punishment of death by stoning, and he answered
that he did not know. This kind of doubt might well amount to the
sort of doubt which invalidates the hadd punishment, as it is known,
of death by stoning for zind, in which case the nature of the rela~
tionship between the rulings of the Qur'in and Sunnah on this issue
would be one of abrogation rather than fakiesis."”

The majority of ‘wlama’ are in agreement that ijma* may specify a
general ruling of the Qur'in, An example of this is the text on the Friday
congregational prayer which is addressed to all believers asking them
to attend the congregation after the prayer call (i.e. the adhdn) (ah
Jum ‘ah, 62:10). The ijm’ has, on the other hand, specified the general
purpose of this ruling in respect of women and slaves (when there
were slaves, that is) who are exempt from attending the Friday prayer.

One can also find many example where the dhad hadith have speci
fied the general rulings of the Qur'an. The dyah of inheritance in sa
al-Nist (4:12), which determined a share for the daughter, has thus
been specified by the hadith "We the community of the Prophets are
not inherited.”

595 Vel tw bf

The Prophet's daughter, Fatima, was consequently not entitled to
inheritance from her father. Similarly, the general ruling of the
Qur'in conceming marriage that declared, immediately after stating
the prohibited degrees of relations ~ ‘and lawful for you are [all
women] other than those’ (al-Nis3, 4:24) — has in cum been specified
by the ahad hadith which forbids simultaneous marriage with the
maternal and paternal aunts of one's wit:

sll le Vy Year gle iI Si Y

As to the question of whether giyas can also act as a specifier of the
general rulings of the Qur’dn and Sunnah, al-Zarkashi stated that the
four leading imams are in agreement that this is permissible, although
different opinions have been recorded on the issue and some of them

146 PRINCIPLE

DF ISLAMIC JURISPRUDENCE

are negative. For an example of giyds which has specified the text, we
refer to the ayah which decreed that after two pronouncements of
talag, the husband mu
them with kindness, and call to witness qwo just ones from among

m with kindness or release

you’ (al-T
Jae 533 ety By at pai sf Oy at oa Sam

Se

Itis likely thae the command concerning witnesses in this dyah conveys

an obligation such as we read in the hadith “There is no martiage
without the guardian and (wo just witnesses

due gaaley Jy Yl cs Yy

It is also possible that the command conveys a recommendation
nadb) only, such as we find concerning sale in the Qur'4n, ‘and have
witnesses when you sell to one another.’ (al-Bagarah, 2282)

nls 13} Vgagely

Imam Shafi'l said that God, Most High, has drawn a parallel between
faldg and revocation (raj ah) and commanded testimony in both. Since
we know that testimony is not obligatory in jaldg, it is not obligatory
by way of analogy, in raj‘ah either. The general ruling of the text
which conveyed wujib has thus been specified by way of analogy into
a recommendation only. The basic and general meaning of a
command, which is wujib, has thus been specified into nadb on the
grounds of analogical reasoning,

In grammatical terms, the ‘dmm in its Arabic wage takes a variety
of identifiable forms, The grammatical forms in which the ‘dmm oceurs
are, however, numerous and, owing to the dominantly linguistic and
Arabic nature of this subject, I shall only attempt to explain some of
the well-known patterns of the ‘nun

When a singular or a plural form of a noun is preceded by the
definite article al, it is identified as “dimm, For example, the Qur’anic
text which provides, ‘the adulterer, whether a woman or a man, flog
them one hundred lashes’ (al-Niir, 24:2)

Butler Mle Lage dots JS Iptleld al sly at J

Rules of Interpretation I: Deducing the Law from its Sources 147

Here the article al preceding ‘adulterer’ (al-zaniyah wa'l-zant) indicates
that all adulterers must suffer the prescribed punishment. Similarly,
when the phiral form of a noun is preceded by al, it is identified as
‘mm. The example that we gave above relating to the waiting period
of the divorced women (al-mujallagdt) is a case in point. The dyah in
question begins by the word ‘al-muallagar’, that is, ‘the divorced
women’! who are required to observe a waiting period of three
courses before they can marry again. "The divorced women’ is an
dmm which includes all to whom this expression can apply

The Arabic expressions jami, kaffah and kull (‘all’, ‘entire’), are
generic in their effect and, when they precede or succeed a word, the
latter comprises all to which it is applicable. We have already illus-
trated the occurrence of *kull” in the Qur’dnic text where we read
"We made everything (kulla shay’) alive from water’. The word jamt
has a similar effect when it precedes or follows another word. Thus
the Qur'lnic text which reads, “He has created for you all that is in
the earth’ (al-Bagarah, 2:29)

2 Qe pS gle sill ya

means that everything in the earth is created for the benefit of man.
Similarly, when a word, usually a plural noun, 1s prefixed by a conjunc-
tive such as wolladhina (‘those men who') and walla (‘those wom

who’), it becomes generic in its effect. An example of this in the
Qu?’Sn occurs in stra al-Nar (24:4): “Those who accuse chaste women
of adultery and fail to bring four witnesses, flog them eighty lashes.”

a pilald cligs awh ot BF cleat Oy cuilly
aly gull
This ruling is general as it applies to all those who can powibly be
included in its scope, and it remains so unless there is evidence to
warrant specification. As it happens, this ruling has, in so far as it relates
to the proof of slanderous accusation, been specified by a subsequent
yah in the same passage. This second dyah makes an exception in the
case of the husband who {s allowed to prove a charge of adultery
against his wife by taking four solemn oaths instead of four wimesses,
but the wife can rebut the charge by taking four solemin oaths herself
(al-Nar, 24:6). The general ruling of the first dyah has thus been
qualified insofar as it concerns a married couple.

148 PRINCIPLES OF ISLAMIC JURISPRUDENCE

An indefinite word (al-nakirali) when used to convey the negative
neric in its effect, For instance, the hadith 1d darar wa Id dirdr
Jslém (‘no harm shall be inflicted oF reciprocated in Islam’) is general
in its import, as ‘ld darar’ and ‘Id dirdr’ are both indefinite words which

convey their concepts in the negative, thereby negating all to which
they apply

The word 'man' (‘he who’) is specific in its applicatic
used in a conditional speech, it has the effect of a general word. To
yy refer to the text which provides
must release a believing slave"

bur when

illustrate this in the Qur'an, we 1
hoever kills a believer in error

{al-Nisi’, 4:92):
Rape day pad lhe bey J5 oy

nd ‘Whoever among you sees the new moon must observe the fast’
(al-Baqarab, 2:18).

antl pth pee hg end

There is general agreement that the khdss is definitive
import, but the “ulamd’ have differed as to whether the ‘dmm is defini-
tive or speculative (zannf), According to the Hanafis, the application
of ‘dmm to all that it includes is definitive, the reason being that the
language of the law is usually general and if its application were to be
confined to only a few of the cases covered by its words without 3
particular reason or authority to warrant such limited application, the
intention of the Lawgiver would be frustrated. The majority of
‘ulama’, including the Shati'ls, Malikis and Hanbalis maintain, on the
other hand, that the application of ‘mm to all that it includes is spec
ulative as it is open to limitation and ra'wil, and so long as there is
such a possibility, it is not definitive. The result of this disagreement
becomes obvious in the event of a conflict between the ‘damm of the
Qur'an and the khagy of the hadith, especially the weak or the solitary
hadith, According to the majority view, a solitary hadith may specify
a general provision of the Qur'an, for the ‘dmm of Qur'an is zanni
and the khays of a solitary hadith, although definitive in meaning, is
of speculative authenticity. A zanni may be specified by a gaff or
another zanni.? To the Hanafis, however, the ‘damm of Qur'an is
definite, and the solitary hadith, or qiyas for that matter, is speculative,
A definitive may not be limited nor specified by a speculative. The
two views may be illustrated with reference to the Qur’anic text

Roles of Interpretation I: Deducing the Law from its Sources 149

concerning the slau

fer of animals, which provides ‘eat not [of
meat] on which God's name has not been pronounced’ (al-An‘am,
6:12)

ade bt ot SA Liyist vy

In conjunction with this gencral ruling, there is a solitary hadith which
states that ‘the believer slaughters in the name of God whether he
pronounees the name of God or not’.

2S be hgh Bi pet S36 Je lel anys

Elsewhere the Qur’in addresses the believers, with reference to the
Abi al-Kitab, that their ‘food is lawful for you and your food is lawful
for them’ (al-Ma'idah, 5:5).

phe Sealy SS Jo ASI sf alll plaby

The word “food” in this dyah means animals that are slaughtered by
the Jews and the Chnstians. This is lawful for Muslims only when it
is slaughtered in the name of God. Then we read in the hadith the
specifying terms, which exempt only the Muslims from the require
ment ofthe dysh in s0rz al-An'am, The prohibitory texms of this 2yah
thus remain in force with regard to animals slaughtered by the Ahi
al-Kitab, whereas the hadith before us has relaxed the terms of that
requirement with regard to Muslims.

According to the majority, this badith specifies the Qur’Snic ayah,
with the result that slaughter by a Muslim, even without pronouncing
the name of God, is lawful for consumption. But to the Hanatls, it is
not lawful, as the ‘dmm of the Que’sn may not be specified by solitary
(Ahad) badith. This disagreement between the juristic schools, however,
arises in respect of the solitary badith only. As for the mutauitir (and
the mashhily) there is: no. disagreement on the point that cither of
these may specify the general in the Qur'an just as the Qur'an itself
sometimes specifies its own general provisions.”

‘A.genenal proposition may be qualified either by a dependent clause,
that i, a clause thar occurs in the same text, or by an independent
Jocution. The majority of “ulama’ consider either of these eventualities
to be two varieties of takhsls. According to the Hanafis, however,
an independent locution can specify another locution only if it is
established that the two locutions are chronologically parallel to one

150 PRINCIPLES OF ISLAMIC JURISPRUDENCE

another, but if they are not so parallel, the latter in time abrogates the
former, and the case is one of abrogation rather than takhsis. In the
event where the qualifying words relate to what has preceded and do
not form a complete locution by themselves, they are not regarded
as independent propositions. According to the scholarly majonty, but
not the Hanafis, a dependent clause may qualify a general proposition
by introducing an exception (istithna’), a condition (sharf), a quality
(sifah), or indicating the extent (ghayah) of the original proposition. Each
such clause will have the effect of limiting and specifying the opers
ton of the general proposition. An example of specification in the
form of istithna’ is the general ruling that prescribes the documentation
of commercial transactions that involve deferred payments in stra
al-Bagarah (2:28),

Chi Sale pl Sinp Uy galt 3 pole 318 0 5S of YY
a5 YI

This general provision is then followed, in the same dyah, by the
exception ‘unless it be a transaction handled on the spot that you pass
around among yourselves, in which case it will not be held against
you if you did not reduce it into writing’, This second portion of the
dyah thus embodies an exception to the first. Specification (takhyfs) in
the form of a condition (shar) to a general proposition may be
illustrated by reference to the Qur'inic text which prescribes the
share of the husband in the estate of his deceased wife. The text states:
‘In what your wives leave, you are entitled to one half if they have
no children’ (al-Nisa’, 4:12),

By A Sib Ot pSoigl 37 Gea Sy

The application of the general rule in the first portion of the ayah has
thus been qualified by the condition the text itself has provided in its
later part, namely the absence of children. And then to illustrate
takhgis by way of providing a description or qualification (sifali) to a
general proposition, we may refer to the Qur'Snic text regarding the
prohibition of marriage with one’s step-daughter where we read "[and
forbidden to you are} your step-daughters under your guardianship
from your wives with whom you have consummated the marriage’
(al-Nist’, 4:23).

Rules of Interpretation I: Deducing the Law from its Sources 151

oA lee QU SIL op pS BDU Stuy

Thus the general prohibition in the first part of the dyah has been
qualified by the description that is provided in the latter part. To
illustrate takhsfs in the form of ghayah, or specifying the extent of
application of a general proposition, we may refer to the Quranic
text on ablutions for salah. The text prescribes the ‘washing of your
faces and your hands up to the elbows’ (al-Ma‘idah, :6)

IM Ss pFauly Sa pry et
Washing the hands, which is a general ruling, is thus specified in
regard to the area that must be covered in washing. Similarly, when
it is said "respect your fellow citizens unlew they violate the law’, the
word ‘citizens’ includes all, but the succeeding phrase specifies the
extent of the operation of the general ruling.

When the application of a general propouition is narrowed down,
not by a clause that is part of the general locution itself, but by an
independent locution, the latter may consist of a separate text, or of
a reference 'to the general requirements of reaton, social cucom, ot
the objectives of Sharf'ah (hikmah al-tashrt’). It is by virtue of reason,
for example, that infants and lunatics are excluded from the scope of
the Qur’Snic obligation of hajj, which occurs in sra Al ‘Imran (3:97)
Similarly, the general text of the Qur'in which reads that ‘{a wind)
will destroy everything by the commund of its Lord’ (al-Abqif, 46:25)

ey pl ee JF pu

customarily denotes everything that is capable of destruction. Similarly,
in the area of commercial transactions, the general provisions of the
law are often qualified in the light of prevalent custom.

And lastly, the general provision of the Qur’in concerning retali-
ation in injuries on an ‘equal for equal’ basis (al-M'idah, :48) is
qualified in the light of the objectives of the Lawgiver in the sense
that the offender is not to be physically wounded in the manner
that he injured his victim, but is to be punished in proportion to the
gravity of his offence.

‘Then there arises the question of chronological order between
the general and the specifying provisions, The specifying clause is
either parallel in origin to the general, or is of later origin, or their

152 PRINCIPLES OF ISLAMIC JURISPRUDENCE

chronological order is unknown. According to the Hanafis, when the
specifying clause is of a later origin than the general proposition, the
former abrogates the latter and is no longer regarded as takhis, but
as a partial abrogation of one text by another. According to the Hanafis,
takhsis can only take place when the ‘damm and the kehdys are chrono
logically parallel to one another; in cases where this order cannot
be established between them, they are presumed to be parallel. The
difference between abrogation and takhsls is that abrogation consists
of a total or partial suspension of a ruling at a later date, whereas takhyfy
essentially limits the application of the ‘dmm ab initio, To the majority
of ‘ama’, talehsis is a form of explanation (bayiin) in all of its varieties,
but to the Hanafls it is a form of baydn only when the specifying clause
is independent of the general proposition, chronologically parallel eo
it, and is of the same degree of strength as the ‘dm in respect of being
a gat of a sani. But when the specifying clause is of a later onigin
than the general proposition, the effect it has on the latter, according
to the Eanatls, is one of abrogation rather than baydn.** The majority
view on takhsis thus differs from the Hanafls in that takhyis according
tooth

majority may be by means of both a dependent of an indepen
dent locution, and the specifying clause need not be chronologically
parallel to the general proposition. This is because, in the majority
opinion, the specifying clause explains and docs not abrogate nor
invalidate the general proposition

Notwithstanding the disagreement of the ‘wlama’ regarding the
nature of takhgls, it would appear that takyiy is not a partial invali-
dation of the ‘dmm, but an explanation or qualification of it. This is
the majority view, and seems to be preferable to the Hanafi view that
equates takhsls with partial abrogation,” Al-Ghazill discusses the
Hanafi position at some length, and refutes it by saying that a mere
discrepancy in time does not justify the conclusion that sakhyiy
changes ity character into abrogation. Nor is it justified to say that a
discrepancy in the strength of the indication (dali) determines the
difference between takhs!y and abrogation.®

The effect of ‘dimm is that it remains in force, and action upon it
is required, unless there is a specifying clause that limits its applica
tion. In the event where a general provision is partially specified, it
still retains its legal authority in respect of the part that remains
unspecified. According to the majority of ‘ulama’, the ‘dmm is spec~
ulative as a whole, whether before or after takhyis, and as such it is
open to qualification and ta’wil in either case. For the Hanafis,
however, the ‘amm is definitive in the first place, but when it is

Rules of Interpretation I: Deducing the Law from its Sources 153

partially specified, it becomes speculative in respect of the part which
still remains unspecified; hence it will be treated as zannt and would
be susceptible to further specification by another zanni.

As for the question of whether the cause of a general ruling can
operate as a limiting factor in its general application, it will be noted
that the cause never specifies a general ruling. This is relevant, as far
as the Qur’in is concemed, to the question of avbab al-nuzil, or the
occasions of its revelation. One often finds general rulings in the
Quran which were revealed with reference to specific isues.
Whether the cause of the revelation referred to a particular situation
oF not, it does not operate as a limiting factor on the application of
the general ruling. Thus the occasion of the revelation of the dyah of
imprecation (lian) in sGra al-Nor (24:6) was a complaint that a resi-
dent of Medina, Hilil ibn Umayyah, made to the Prophet about the
difficulty experienced by the spouse in proving, by four eyewitnesses,
the act of adultery on the part of the other spouse. The cause of the
revelation was specific but the ruling remains general. Similarly, the
‘hadith whicls states that ‘when any hide is tanned, it is purified"

ab ao fs Cul id

was, according to reports, uttered with reference to a sheepskin, but
the ruling is nevertheless applicable to all types of skins. The actual
wording of 3 general ruling is therefore to be taken into considera-
tion regardless of its cause. If the ruling is conveyed in general terms,
it must be applied as such, even if the cause behind it happens to be
specific.

III.1 Conflicts between “Amm and Khas;

Should there be two textual rulingy on one and the same subject in
the Qur'in, one being ‘“dmm and the other khays, there will be a case
of conflict between them according to the Hanatls, but not according
to the majority, The reason is that to the Hanafls, “mm and bhayy are
both definitive (gaff) and as such a conflict between them is posible,
whereas to the majority, only the khass is gaff and it will always
prevail over the ‘amm, which is zanni.

The Hanafis maintain that in the event of a conflict between the
general and the specific in the Qur'an, one must ascertain the chrono-
logical order between them first; whether, for example, they are both
Meccan or Medinan dyat or whether one is Meccan and the other

154 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Medinan. If the two happen to be parallel in time, the khigs specifies
the ‘dmm. If a different chronological sequence can be established
eer them, then if the ‘dmim is of a later origin, it abrogates the
kha, the kgs is later, it only partially abrogates the “amm. This
is because the Hanafis maintain that the khdis specifies the “dmm only
both are quf'f, and both are

betw

when they are chronologically parall

independent locutions.
The majority of ‘ulama’, as already noted, do not envisage the
possibility of a conflict becween the ‘dim and the khdgs: when there
are two rulings on the same point, one being ‘dun and the other shay
the latter becomes explanatory to the former and both are retained.
For the majority, the ‘dmum is like the zahir in that both are speculative
and both are open to qualification and 'wil The two foregoing
approaches to takhsfy may be illustrated by the conflict arising in the
following two hadith concerning legal alms (zakih). One of these
provides, ‘Whatever is watered by the sky is subject to a tithe,

wpe id Ln cd

The second hadith provides, “There is no charity in less than five
away."

tie Glo sl nh O99 ed nd

A wasag (sing, of awsdg) is a quantitative measure equivalent to about
ten kilograms. The first hadith contains a general ruling in respect of
any quantity of agricultural crops, but the second hadith is specific on
this point. The majority of ‘ulamd" (including the Shafi'ls) have held
that the second hadith explains and qualifies the first. The first hadith
lays down the general principle and the second enacts the quorum
(nigab) of zakih. For the Hanafis, however, the first hadith abrogates
the second, as they consider that the first hadith is of a later origin
than the second. According to the Hanafis, when the ‘dm is of a later
origin than the kids, the former abrogates the latter completely. Hence
there is no case for takhsiy and the Hanatls, as a result, impose no
minimum quantitative limit with regard to zakih on produce obtained
through dry farming. The two views remain far apart, and there is no
meeting ground between them. However, as already indicated, the
majority opinion is sound, and recourse to abrogation in cases of
conflict between the ‘iinun and khdjy is often found to be unnecessary.
In modern law, too, one often notices that the particular usually

Rules of Interpretation 1: Deducing the Law from its Sources 155

qualifies the general, and the two can co-exist. The ‘émm and the
dkhass can thus each operate in their respective spheres with or with-
out a discrepancy: in their time of origin and the degree of their
respective strength.”

IV. Classification (C): The Absolute (Muslag) and the
Qualified (Mugayyad)

Miujlag denotes a word which is neither qualified nor limited in its
application. When we say, for example, a ‘book’, a ‘bird’ or a ‘man’,
each one is a generic noun which applies to any book, bird or man
without any restriction. In its original state, the mutlag is unspecified
and unqualified. The muplag differs from the ‘dmm, however, in that
the latter includes all to which it applies whereas the former can apply
to any one of a multitude, but not to all," However, the “ulama’ have
differed regarding the definition of muflag and the mugayyad. To some
lama’, including al-Baydawi, the muflag resembles the ‘damm, and the
mugayyad resembles the khass. Hence anything which specifics the
dmm can qualify the mujlag. Both are open to ta'wil and mutlag/
mugayyad are complementary to‘ dmm/khajs respectively.” When the
mutlag is qualified by another word or words it becomes a mugayyad,
such as qualifying a book’ a8 ‘a green book’, or ‘a bird’ as ‘a huge bird’
or ‘a man’ as ‘a wise man’. The mugayyad differs from the lehdss in
that the former is a word that implies an unspecified individual/s who
is/are merely distinguished by certain attributes and qualifications, An
example of mujlag in the Qur'an is the expiation (kaffirah) of futile
‘oaths, which is freeing a slave (fa-taliinw ragabatin) in sOra al-Ma'idah,
(5:92). The command in this text is not limited to any kind of slave,
whether Muslim or non-Muslim, Yet in another Quranic passage
the expiation of erroneous killing consists of ‘freeing a Muslim slave’
{fa-tabrine ragabatin mu’minatin) (al-Nis’’, 4:92), In contrast to the first
text which is conveyed in absolute terms, the command in the second
yah is qualified in that the slave to be released must be a Muslim.
The muslag remains absolute in its application unless there is a
limitation to qualify it. Thus the Qur'inic prohibition of marriage
‘with your wives’ mothers’ in sGra al-Nisi’ (4:23) is conveyed in
absolute terms, and as such, marriage with one’s mother-in-law is
forbidden regardless as to whether the marriage with her daughter has
been consummated or not. Since there is no indication to qualify the
terms of the Qur'inic command, it is to be implemented as it is. But
when a muflag is qualified into a mugayyad, the latter is to be given

146 PRINCIPLES OF ISLAMIC JURISPRUDENCE

priority over the former. Thus if we have two texts on one and the
uke) as well as both
q and the other

same subject, and both convey the same ruling (

cause (sabab) but one is muf

having. the
mugayyad, the latter prevails over the former. To illustrate this in the
Quin, we refer to the two dyat on the prohibition of blood for
human consumption. The first of these, which occurs in absolute

terms, provides: ‘Forbidden to you are the dead carcass and blood’
al-Ma'id

pally taal) Sole cone

But elsewhere in the Qur’dn there is another text on the same subject
which qualifies the word ‘blood’ as ‘blood shed forth’ (al-An‘im, 6:14)

Le pie

This second dyah is a mugayyad whereas the first is muflag, and the
mugayyad therefore prevails, It will be noted here that the two texts
convey the same ruling, namely prohibition, and that they have the
same cause of subject in common (i.e. consumption of blood). When
this is the case, the ‘wamd’ are in agreement thar the mugayyad
qualifies the muflag and prevails over it

However, if there are two texts on the same issue, one absolute
and the other qualified, but they differ with one another in their
rulings and in their causes, or in both, then neither is qualified by the
other and each will operate as it stands. This is the view of the Hanafl
and Maliki schools, and the Shafi'ls concur insofar as it relates to two
texts which differ both in their respective rulings and their causes.
However, the Shifi'ls maintain the view that if the two texts vary in
their ruling (hukm) but have the same cause in common, the muflay
is qualified by the mugayyad. This may be illustrated by referring to
the two Qur'inic dydt concerning ablution, one of which reads, in
in address to the believers, to ‘wash your faces and your hands
{aydikwm) up to the elbows’ (al-Miidab, §:6),

prey Nghnbl reall Sf cad 15] I yeaT alll Lgl
AD S Salty

The washing of hands in this dyah has been qualified by the succeed
ing phrase that is ‘up to the elbows’, The second Qur'anic provision

Rules of Interpretation I: Deducing the Law from its Sources 157

which we are about to quote occurs in regard to tayammum, that is,
ablution with clean sand in the event where no water can be found,
in which case the Qur’in provides, ‘take clean sand and wipe your
faces and your hands’ (al-Niss’, 4:43)

pSely Saye y: Lemay Leb Lee lyaacd

The word ‘aydikum’ (your hands) occurs as a mugayyad in the first text
but as a muflag in the second. However, the two texts have the same
cause in common, which is cleanliness for salah. There is admittedly
a difference between the two rulings, in that the first requires wash-
ing, and the second wiping, of the hands, but this difference is of 0
consequence. The first is a mugayyad in regard to the area of the hands
to be washed whereas the second is conveyed in absolute terms. The
second is therefore qualified by the first, and the mugayyad prevails.
Consequently, in wiping the hands in tayammu, too, one is required
to wipe them up to the elbows.

And lastly we give another illustration, again of two texts, one
muflag, the other mugayyad, both of which convey the same ruling
but differ in respect of their causes. Here we refer to the two Qur'tnic
dyit on the subject of witnesses. One of these, which requires the
testimony of two witness in all commercial transactions, is conveyed
in absolute terms, whereas the second is qualified. The first of the
two texts does not qualify the word “men' when it states ‘and bring
two witnesses from among your men’ (al-Bagarah, 2:282),

Soles op cetse® Iyteteely

Bur the second text on same subject conveys a qualified command
when it states, ‘and bring two just witnesses [when you revoke a
divorce]' (al-Tallq, 65:2).

pS Sue cs 33! ects

The ruling in both texts is the same, namely the requirement of
two witnesses, but the two rulings differ in respect of their causes
‘The cause of the first text, as already noted, is commercial transactions
which must accordingly be testified to by two men; whereas the cause
of the second ruling is the revocation of jaldg. In the first ayah
witnesses are not qualified, but they are qualified in the second dyah.
The latter prevails over the former. Consequently, witnesses in both

158 PRINCIPLES OF ISLAMIC JURISPRUDENCE

commercial transactions and the revocation of falég must be upright
and just.

The foregoing basically repre
Hanafis maintain that when the me
their causes, the one does not qualify the other and that each should

nts the majority opinion. But the
jayyad and the muflag differ in

be implemented independently. The Hanatis basically
one case where the mugayyad qualifies the muslag, that
convey the same ruling and have the same cause in common. But when
they differ in either of these respects or in both, then each must stand
separately. In this way the Hanafls do not agree with the majority in
regard to the qualification of the area of the arms to be wiped in
tayammum by the same terms which apply to ablution by water (wadi’)
The Hanafls argue that the bukm in regard to tayamumum is conveyed
in absolute terms and must operate as such. They contend that, unlike
wnda’, tayammum is a shart concession, and the spirit of concession

cognise only

when both

should prevail in the determination of its detailed requirements,
including the area of the arm thar is to be wiped.”

V. Classification (D): The Literal (Hagigi) and the
Metaphorical (Majazt)

A word may be used in its literal sense, that is, for its original of
primary meaning, of it may be used in a secondary and metaphorical
sense. When a word is applied literally, it keeps its original meaning
but, when it is used in a metaphorical sense, it is transferred from its
original to a secondary meaning on grounds of a relationship between
the two meanings.” There is normally a logical connection between
the literal and the metaphorical meanings of a word. The nature of
this relationship varies and extends over a wide range of possibilities
There are at least thirty to forty variations in how the metaphorical
usage of a word may relate to its literal meaning.” The metaphorical
usage of a word thus consists of a transfer from an original to a
connected meaning, Once such a transfer bas taken place, both the
original and the metaphorical meanings of a word cannot be assigned
to it at one and the same time.

‘Words are normally used in their literal sense, and in the language
of the law it is the literal meaning that is relied upon most. Hence if
a word is simultaneously used in both these senses, the literal will
prevail. When, for example, a person says in his will that ‘I bequeath
my property to the memorisers of the Qur'an’ of to 'my offspring’,
those who might have memorised the Que’an but have forgotten it

Rules of Interpretation I: Deducing the Law from its Sources 159

since will not be entitled. Similarly, ‘offspring’ (qwldd) primarily means
sons and daughters, not grandchildren, as applying ‘avlad’ to ‘grand-
children’ is a metaphorical usage that is secondary to its onginal
meaning.”

Both the hagigf and the majazi occur in the Qur'an, and they each
convey their respective meanings. Thus when we read in the Que’In
to “kill not (13 tagtuli] the life which God has made sacrosanct’, ‘la
tagtuld’ conveys a lieral meaning. Similarly, the majzf occurs frequently
in the Qur’in. When, for example, we read in the Qur'an that God
‘sends down your sustenance from the heavens’ (Ghifir, 40:13)

jy slant e+ pS Spay

this means rain which causes the production of food. Some ‘ulama’
have observed that majiz/ is of the nature of a homonym which could
comprise what may be termed as falsehood, or that which has no
reality and truth, and that falsehood has no place in the Qur'3n. Imam
Ghazill discusses this argument in some length and represents the
majority view when he refutes it and acknowledges the existence of
the majiizt in the Qur'an. The Que'Inic expression, for example, that
‘God is the light of the heavens and the earth’ (al-Nar, 24:35)

My Oly og at
and ‘whenever they [the Jews} kindled the fire of war, God extin-
guished it’ (al-M3‘idah, $:64),

Bull oA Lu taf us

God being "the light of the universe’, and God having ‘extinguished
the fire of war’, are both metaphorical usages; and numerous other
instances of the majazi can be found in the Qur'an,” As already stated,
the hagiq? and the majazxt both occur in the Qur'an, and they each
convey their respective meanings, but this is only the case where the
majazi does not represent the dominant usage. In the event where a
word has both a literal and a metaphorical meaning and the latter is
well-established and dominant, it is likely to prevail over the former.
Some ‘ulama’ have, however, held the opposite view, namely, that the
hagiqt will prevail in any case; and according to yet a third view, both
are to be given equal weight. But the first of these views represents
the view of the majority. To give an example, the word “falig’

160 PRINCIPLES OF ISLAMIC JURISPRUDENCE

literally means ‘release’ or ‘removal of restriction’ (izdlah al-gayd), be
it from the tie of marriage, slavery, or ownership, etc. But since the
juridical meaning of salag, which is dissolution of marriage, or divorce,
hhas become totally dominant, it is this meaning that is most likely to
prevail, unless there is evidence to suggest otherwise.”

The hagiqi is sub-divided, according to the context in which it
occurs, into hnguistic (lughawi), customary (‘urff) and juridical (shart).
The linguistic hagiqi is a word which is used in its dictionary mean-
ing, such as ‘lion’ for that animal, and ‘man’ for the male gender of
human being. The customary hagigi occurs in the two varieties
neral and special: when a word is used in a customary sense and
custom is absolutely common among people, the customary hagigl
is classified as general, that is, in accord with the general custom. An
example of this in Arabic is the word 'dabbah" which in its dictionary
meaning applies to all living beings that walk on the face of the earth,
but which has been assigned a different meaning by general custom,
that is, an animal walking on four legs. But when the customary hagigi
1s used for a meaning that is common to a particular profesion or group,
the customary fagiq/ is classified as special, that is, in accord with a
special custom. For example, the Arabic words raf nominative’) and
nash (‘accusative’) have each acquired a technical meaning that is
common among grammarians and experts in the Language

There is some disagreement as to the nature of the juridical hagigl,
as some ‘ulama’ consider this to be a variety of the hajdzf, but having
said this, the juridical bagiqi is defined asa word which is used for a
juridical meaning that the Lawgiver has given it in the first place, such
as ‘salah’, which literally means “supplication’ but which, in its welle
established juridical sense, is a particular form of worship. Similarly,
the word sakah literally means ‘purification’, but in its juridical sense,
denotes a particular form of charity whose details are specified by the
Shart'ah.*

It would take us too far afield to describe the sub-divisions of the
majazi, a8 we are not primarily concemed with technical linguistic
detail. Suffice it to point out here that the majdzt has also been divided
into linguistic, customary and juridical varieties. However, there is
one other classification which merits our attention; this is the division
of the hagigf and majazi into plain (sarih) and allusive (keindyah),

If the application of a word is such that it clearly discloses the
speaker's intention, it is plain; otherwise it is allusive, The highest
degree of clarity in expression is achieved by the combination of the
plain (sarih) and the literal (bagigi) such as the sentence ‘Abmad bought

Rules of Interpretation I: Deducing the Law from its Sources 161

a house’, or ‘Fatima married Abmad’, The plain may also be combined
with the metaphorical, as in the sentence “I ate from this tree’, where
the meaning intended is ‘from the fruit of this tree

The ‘allusive’ or kindyah denotes a form of speech that does not
clearly disclose the intention of its speaker and can occur in combi-
nation with the literal or the metaphorical. When a person wishes,
for example, to confide in his colleague in front of others, he might
say, ‘I met your friend and spoke to him about the matter that you
know’. This is a combination of the literal and the allusive in which
all the words used convey their literal meanings but where the whole
sentence is allusive in that it does not disclose the purpose of the
speaker with clarity. Supposing that a man addresses his wife and tells
her in Arabic ‘i‘tadf’ (‘start counting’) while intending to divorce her
This utterance is allusive, as ‘counting’ literally means taking a record
of numbers, but is used here in reference to counting the days of the
waiting period of ‘iddah. This speech is also metaphorical in that the
iddah which is caused by divorce is used as a substitute for ‘divorce’
It isa form of majdzf in which the effect is used as a substitute for the
cause.”

When speech consists of plain words, the intention of the person
using them is to be discemed from the words themselves, and there
is no room for farther enquiry as to the intention of the speaker. Thus
when a man telis his wife ‘you are divorced’, the divorce is pronounced
in plain words and occurs regardiew: of the husband's intention. But
in the case of allusive words, one has to ascertain the intention behind
them and the circumstances in which they were uttered. Thus when
a man tells his wife "you are forbidden to me’, or when he asks her
to ‘join your relatives’, no divorce will take place unless there is
evidence tw show that the husband intended a divorce,"

Legal matters that require certainty, such as offences entailing the
edd punishment, cannot be established by language which is not plain.
For example, when a person confewes to such offences in allusive
words, he is not liable to punishment."

‘The jurists are im agreement that a word may be used metaphori-
cally while still retaining its literal meaning, such as the word ‘umm’
(mother) which the Arabs sometimes use metaphorically for ‘grand-
mother’ and yet still retains its literal meaning, But there is disagree-
ment among the ‘ulamd’ of upiif as to whether both the literal and
metaphorical meanings of a word can be applied simulancously. When,
for example, a man orders his servant to ‘kill the lion’, could this also
include a brave person? The Hanafls and the Mu'tazilah have answered

162 PRINCIPLES OF ISLAMIC JURISPRUDENCE

this question in the negative, saying that words normally carry their
literal meanings unless there is evidence to warrant depareure to

nd the ‘wlama’ of hadith have held,

nother meaning. The Shafi'ts
on the other hand, that the literal and the metaphorical meaning of
a word cin be simultaneously applied. They have thus walidated
cither of the two meanings of the Qur'inic provision, “or when you
have touched women’ (al-Nisi’, 4:43

clint peme sf

which could mean touching the women with the hand, or touching
in the sense of having sexual intercourse. The text in which this dyah
occurs spells out the circumstances that break the state of purity. Thus
when a Muslim ‘touches a woman’ he must take a fresh ablution for
the next salah, But according to the Hanafls, the Qur'anic dyal on
this poine only conveys the metaphorical meaning of ‘touching’, that
is, sexual intercourse, Hence when 2 person is in the state of ablution,
and then touches a woman by the hand, his ablution remains intact,
For the Shifi'ts, however, the key word in this dyah carries bork its
literal and metaphorical meanings simultaneously, Consequently, the
state of purity is broken, not only by sexual intercourse, but also by
a mere touch such as a handshake with a woman who is not of one’s
family.”

V.1 The Homonym (Mushtarak)

A homonym is a word with more than one meaning. Some ‘wlama’,
including al-Shifi7, have held the view that the homonym is a Variety
of ‘amm. The two ate, however, different in that the homonym
inherently possesses more than one meaning, which is not necessarily
the case with the “amm. An example of the mushzarak in Arabic is the
word “ayn’ which means several things, including eye, water-spring,
gold, and spy. Similarly the word ‘qur” has two meanings, namely
menstruation, and the clean period between two menstruations. The
Hanafis, the Hanbalis and the Zaydis have upheld the first, while che

Shafi'ls, Malikis and Ja‘faris have upheld the second meaning of qur'."

The plurality of meanings in a homonym may be due to the usage
of different Arab tribes and communities. Some used it for one mean=
ing, others for the other; otherwise a word may have acquired a
metaphorical meaning which became literal in the course of time.
Wher mushtarak occurs in the Qur’in or Sunnah, it denotes one

Rules of Interpretation I: Deducing the Law from its Sources 163

meaning alone, not more than ane, for the Lawgiver does not intend
more than one meaning for a word at any given time. The Shifi‘is
and some Mu'tazilah have taken exception to this view as they main-
tain that, in the absence of any indication in support of one of the
two or more meanings of a mushtarak, both or all may be upheld
simultaneously provided that they do not contradict one another
According to a variant view, however, plurality of meanings on a
simultaneous basis is permissible in negation or denial (nafy) but not
in affirmation and proof (ithba), If, for example, Ahmad says I did not
see a ‘ayn (ma ra’aytu ‘aynan)’, ayn in this negative statement could
comprise all its various meanings."* ‘This view, however, does not
extend to commands and prohibitions that do not admit affirmation
or denial as such. The rule in regard to commands and prohibitions
of the Shariah is that the Lawgiver does not intend to uphold more
than one of the different meanings of a homonym at any given time
An example of a homonym which occurs in the context of a Qur’snic
command is the word *yad’ (*hand’) in “as for the thief, male or
female, cut off their hands’ (al-Ms'idah, $:38)

Lage | ails BLS GLI

"Hand? in this dyah has not been qualified in any way, hence it can
mean “hand’ from the tip of the fingers up to the wrist, or up to the
elbow, or even up to the shoulder; it also means left or right hand,
Bur the ‘ulama” have agreed on the first and the last of these meanings,
that is, the right hand, up to the wrist."® To illustrate the homonym
in the context of a prohibitory order in the Qur'an, we refer to the
word ‘nakaha’ in sGra al-Nisi’ (4:23) which reads, ‘And marry not
women whom your fathers had married"

Led oy pS HUT SIL ISG Vy

‘Nakaha’ is a homonym which means both marriage and sexual inter-
course. The Hanafis, the Hanbalis, al-Awza'l and others have upheld
the latter, whereas the Shifi'is and the Malikis have upheld the former
meaning of nakaha. According to the first view, a woman who has
had sexual intercourse with a man is forbidden to his children and
grandchildren; a mere contract of marriage, without consummation,
would thus not amount to a prohibition in this case. The Shafi'ts and
Malikis, however, maintain that the text under discussion only refers
to the contract of marriage. Accordingly, a woman who has entered

AMI

164 PRINC JURISPRUDENCE

a contract of marri: er or gran

as to whetk has been

for one to marry arriage

To

is to be uph

termine which of the wo ¢

|d in a particular
es in which it

the context and circum cours. If

ning the precise

to the Shariah, then detern

that pe

its words must also take into consideration the gener:
the Shart‘ah. The

principles and

objectives of

nature and it is for the mujtahid to determine in

corre

meaning by

means of research and ijtihad; it is his duty to do so in the event where

the basis of a judicial order.” The mujtahid w

context. Wh

mushtarak constitute

normally look into

n, for example, a homonym has

er juridical, and

one literal a

two meaning it occurs in a

al

juridical context, then as a rule the juridical meaning will
With words such as salih and fal

J. for example, each possesses a lit

that i lication’ and ‘release’ respectively, but when the

occur in a juridical context, then their

uridical meanings will take

priority. As such, alah would be held to refer to a particular form

worship, and faldg would mean ‘dissolution of

Finally

not confined to noun

it will be noted

but also include

Nn passing that mushtarak as a concept i

verbs. In our

commands and prohibitions in a separate chapter, we have shown h

a word

mperative mood can impart m

ore than one meaning.

We have also discussed and illustrated the words of the Que’ia that

occur in th

id, but the juridical value

they convey

imperative me

can either be an obligate

mand, a recommendation,

or mere
permissibility

NOTHS

Rahim, Jurisprudence; p. 78
Badric, Boyle, pp, sa4ff

3. Khalaf, ‘dim, pp, 16>

4. Amid, thhinn, 11, $3: Badri, Uji, p. 400

Ammidt, Dikiln, 11, $4: Badin, Ul

6, Tabrtat, Afishlsn, VT. 048, hadith nc aft, thd, U1, 54: Badin, Ue
pe aor

7. Amid, Inkim, 11, 36; Wadrin, Uni, p. 40%. See for more examples of far-fetehed

interpretation, Arid, Svbibw I}, $5~64

, Badri, Up p. 40

Rules of Interpretation I: Deducing the Law from its Sources 165

u
M

Khali

Tim, 9 164

Tabeisi, Mi

Hos, p16

Khallif, “lim p. 16

Ab6 Zahrah, Usd, p
CE Khalaf, “Um, p. 160,

Abo Zahnah, il, p. 9 Badrin, Usa

Tabetal, Mishka, 1 ar, MN, 78: halla
07; Bada 405

Badin, Ua

Abo Dawad, 6, hadith now 4. Feapectivel

bid.

Khallif, “Im, p al, p. 408

Hughes, Dic f blam, p. $18; Badein, Usd p. 406 Abd Zahrah, Usat

AbO Da
Abo Zabrah, Uni, p. 96; Badri, Ul, p. 406

4, Suman, 11, 703, badith no Abo Zahrah, Uv, p. 6

Abo Diw0d, Shonen (Hasac's tems), Hl. $45. hadith no, 2078; Badran, Until, p. 40%

Badrin, L

Khall, Zn, p al, p. at
Shas", Rindlsh, p. 80

Badran, Ui, p

Khallaf, "im,

Zarkashi, alah, 1, 46.
Masher
pp. 414-5
Zarkasht, afePuabr, IM, 456
The Holy Qu/an (Yovuf Alt

Sahih Muses, p vag: Khali, thn, pp 17951 Madr.

4: Abdur

rank) p. 118; von Denifer, "L

Jurisprudene, p. 100

8
Khal
Ghaxall, Massayi 1, 68
Shawhant, bnhid, pp 39

dra, Up, p. 416

im, p. 176.

Ghaxalt, Mustayfa, Il, 12; Abdur Rahim, Juriypmadons, p. 99

Khalaf

Hm, p 17%; Badin, Usa. p

Badein, Usth, p. 379
Abdur Rabin, Jurispnsdione, p. 79.
Muwiingle, 1, 154

Shai

166 PRINCIPLES OF I

LAMIC

4. Bayhaql, ak-Sumam al-Kivbnd, VIL, 44

8 Kalla, “dm, p Uva

9. Ansan, ¢ Wall, pr. Me
70. Khall¥f, a, p. 193; Abdue Rahin, Jurizpmadens, pp. 9t—2
Thid., p. 194; Badeter, Usd ps 454

72, Ibid, pp. 199-4

75, Abdur Rabin, Jurignidene, p. 99; Budrin, Uda p. 394.

4. See for details Shawhs PP. ays

25. Badrin, Ul, p. 395: Hina, Wajte, p14

76. Ghaadll, Musayh, 1. p78

77 Hit, Wighe, p19

. Badein, Ul, p. 394; Mira, Wait, p

79. See for further detail on the various forrrn of the Maitzt: Abdur Ralim
Junpmudence, pp. 94-7: Madrin, L “

No, Badri, a7

81, Abdur Rahim, Jurisprudence, p. 9

fa. Badeto, Ul, p. 397.

$3. AbQ Zahrah, Unit, p. 133; El’, 1V

84. ShawkSnt, nha, p92; naw, Nihipwh, b, 166; Abo Zabrab, Uidl, 9p 139.

Xs, Khali
#6, Badia, Baydn, pp, 169-104,
Abo Zahrah, Usil, p. 139: Khalil

Him, 18

Tim, p. 879

CHAPTER FIVE

Rules of Interpretation II: al-Dalalat
(Textual Implications)

The law normally requires compliance not only with the obvious
meaning of its texts but also with its implied mi
indications and inferences that could be drawn from them.

nings, and indireet
With
reference to the textual rulings of the Qur’in and the Suinah, the
lama’ of usil have distinguished several shades of meaning that a ass
may be capable of imparung. The Hanafi jurists have distinguished
four levels of me: xplicit or
immediate meaning of the text. Next in this order is the ‘alluded’
meaning which is followed by the ‘inferred’ meanings, and lastly by the
*required’ meaning, There is yet a fifth variety of meaning, namely
the ‘divergent’ meaning, which is somewhat controversial but has, in
principle, been accepted, as our discussion will show, The explicit
meaning (‘ibdrah al-nass), which is based on the words and sentences
of the text, is the dominant and most authoritative meaning which
takes priority over the other levels of implied meanings that might
be detectable in the text. In addition to its obvious meaning, a text
may impart a meaning which is indicated by the signs and allusions
that it might contain. This secondary meaning is referred to as isharah
al-nass, that is the alluded meaning. A legal text may also convey a
meaning which may not have been indicated by words or signs and yet
is a complementary meaning warranted by the logical and juridical
purport of the text, ‘This is known as dalilal al-nass, or the inferred
meaning, which is one degree below the alluded meaning by virtue
of the fact that it is essentially extraneous to the text, But as will later

ing in an order which begins with the

168 PRINCIPLES OF ISLAMIC JURISPRUDENCE

be discussed, there is a difference of opinion between the Hanaft
and the Shifi‘i jurists as to whether the inferred meaning should
necessarily be regarded as inferior to the alluded meaning. Next in
this order is the igtida’ al-na

or the required meaning, which is once

« which the text would

again a logical and necessary meaning with
remain incomplete and would fail to achieve its desired purpose
When there is a conflict between the first and the second meanings,
priority is given to the first. Similarly, the second will take priority
over the third and the third over the fourth, as we shall presently

explain

I. The Explicit Meaning (‘Ibarah al-Nass)

As already stated, this is the immediate meaning of the text derived
from its obvious words and sentences. The explicit meaning represents
the principal theme and purpose of the text, especially in cases where
the text might impart more than one meaning and comprises in its
scope a subsidiary theme or themes in addition to the obvious one. In
its capacity as the obvious and dominant meaning, the “ibdrah al-nagy
is always given priority over the secondary and subsidiary themes or
meanings of a text. To illustrate this, we refer to the Qur’inic passage
an the subject of polygamy, a text which conveys more than one
meaning, as follows: ‘And if you fear that you may be unable to treat
the orphans fairly, then marry of the women who seem good to you,
two, three or four, But if you fear that you cannot treat (your
co-wives] equitably, then marry only one” (al-Nisi', 4:3)

pS lb Le yl pote J Nglaenas VI psi Oy
Bal gb yltad VT sit Oy Eling Gy cote cL op

At least three or four meanings are distinguishable in this text which
are: first, the legality of marriage, a meaning which is conveyed by
the phrase fankibi ma faba lakum min al-nisd’ (‘marry of the women
who seem good to you’); second, limiting polygamy to the maximum.
of four; third, remaining monogamous if polygamy may be feared to
Jead to injustice; and fourth, the requirement that orphaned girls must
be accorded fiir treatment, a meaning which is indicated in the first
part of the text. All these are conveyed in the actual words and
sentences of the text; but the first and the last are subsidiary and
incidental whereas the second and the third represent the explicit

Rules of Interpretation Il: al-Dalalat (Textual Implications) 169

themes and meanings of the text, that is, the ‘ibdrah al-nays. Limiting
polygamy to the maximum of four is the explicit meaning which
takes absolute priority over all the implied and incidental meanings
that this text might convey.*

Most of the nusiis of Sharfah convey their rulings by way of “ibarah
al-nass. Thus the command to perform the obligatory prayers, to
observe the fast during Ramadan, to enforce the prescribed penalties
for cenain offences, to give specified shares to the legal heirs in inheri
tance, etc,, ate all instances of “ihirah al-nass. The effect of “ibdrah al-nass
is that it conveys a definitive ruling (hukm gaff) on its own and is in
no need of corroborative evidence. But if the text is conveyed in
general terms, it may be susceptible to qualification, in which case it
may not impart 2 definitive rule of law but constitute speculative
(zanni) evidence only.’

Il. The Alluded Meaning (Isharah al-Nas;)

The text itself may not be obvious with regard to its alluded mean-
ing, but it imparts, nevertheless, a rationally concomitant meaning
that is obtained through further investigation of the signs that might
be detectable therein. Since the alluded meaning does not represent
the principal theme of the text and yet embodies a necessary inference,
itis called isharah al-nays, The alluded meaning may be easily detectable
in the text, or may be reached through deeper investigation and ijtihad.
An example of the ishdrah al-nasy in the Qur'an is the text concerning
the maintenance of young children which provides: ‘It is his {father’s}
duty to provide them with maintenance and clothing according to
custom’ (al-Baqarah, 2:233)

Sy Ay ApS y oj, Fads ley

The explicit meaning of this text obviously determines that it is the
father’s duty to support his child. It is also understood from the word-
ing of the text, especially from the use of the pronoun ‘lah’ (his) that
only the father and no-one else bears this obligation. This much is
easily detectable and constitutes the explicit meaning of this text. But
to say that the child's descent is solely attributed to the father, and
that his identity is determined with reference to that of the father, is
a rational and concomitant meaning that is derived through further
investigation of the signs detectable in the text.* Similarly, the rule
that the father, when in dire need, may take what he needs of the

70 PRINCIPLES OF ISLAMIC JURISPRUDENCE

ring without the latter's permission is yet another
This meaning is
derived from the combination of the text under discussion and the
badith of the Proph Jaims that “you and your property

both belong to your father

uh) eles cil

property of his off
meaning which is derived by way of

dnah al

which proc

Another example of a combination of explicit and alluded meanings
‘occurring in the same text is the Qur’inic dyah on the permissibility

of divorce which states in an address to the believers: “T

no blame on you if you divorce your wives with whom you had no
i for them a dower’ (al-Bagarah,

sexual intercourse, nor had you assigr

2230)
Nye sh ppt 2 Le cluall quill of pSile clin Vy
iad op

xplicit meaning of this text is that divorce is permissible prior

The
to the consummation of marriage and the assignment of a dower. The
alluded meaning here is the legality of concluding a contract of
marriage without the assignment of a dower (mah), for a divorce can
only occur when there is a subsisting 1 The text implies this
to be the case, and that a marnage can legally exist even without the
assignment of a mahr,

To give yet another ¢:
the Qur'anic text on consultation (shiird) where we read, in an address
to the Prophet, ‘So pardon them [the Companions] and ask for
{God's} forgiveness for them and consult them in affairs’ (Al ‘Imran,
43159)

nple of isharah al-nays we may refer to

PID arses poh Aacely opie Gel

The ‘ibdrak al-najs in this cext requires that community affairs must
be conducted through consultation. The alluded meaning of this text
requires the creation of a consulutive body in the community to
facilitate the consultation required by the obvious text.

The effect of ishara al-nagg is similar to that of “ibarah al-nasy in that
both constitute the basis of obligation, unless there is evidence to
suggest otherwise. To illustrate this, we may refer once again to the

Rules of Interpretation II: al-Dalalat (Textual Implications) 171

Qur’inic text (al-Bagarah, 2:223) which lays down the rule that the
child follows the descent of his father. This is a definitive ruling (hukm
gat‘) which has, however, been set aside by ijma in respect of slavery
to the effect that the child of a slave does not necessanly inherit the
status of his father. In this example, the ishdrah al-nass initially laid
down a definitive ruling but it has been set aside in respect of
slavery by another defininve evidence, namely the ijmd,?

Ill, The Inferred Meaning (Dalalah al-Nass)

This is a meaning that is derived from the spirit and rationale of a
legal text even where this is not indicated in its words and sentences
Unlike the explicit meaning and the alluded meaning, which are both
indicated in the words and signs of the text, the inferred meaning is
not indicated in this way. Instead, it is derived through analogy and
the identification of an effective cause (‘illah) which is in common
between the explicit meaning and the meaning that is derived through
inference. This might explain why some ‘wlama' have equated dalélah
al-nags with analogical deduction, namely giyas jalf. To illustrate this,
we muy refer to the Qur’inic text on the obligation to respect one’s
parents. In particular, the text provides ‘and say not “Fie” to them’
(al-Isea 17:25)

OI ad Ja we

which obviously forbids the utterance of the slightest word of contempt
to parents. The effective cause of this prohibition is honouring parents
and avoiding offence to them. There are, of course, other forms of
offensive behaviour, besides a mere contemptuous word such as Fie’,
to which the effective cause of this prohibition would apply. The
inferred meaning of this text is thus held to be that all forms of abusive
words and acts which offend parents are forbidden, even if they are
not specifically mentioned in the text under consideration,"

To give another example, the Qur’in proclaims, concerning the
property of orphans, thar ‘those who unjustly devour the property of
the orphans only devour fire into their bodies’ (al-Nisi’, 4:10)

SS UY Ll tet If ois 2A! a}
UG Apes 3

172 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The explicit meaning of this sext forbids guardians and executors
ed wards for personal
nded to
en caused,

from devouring the property of their orpha:
gain. But by way of inference, the same prohil
other forms of destruction and waste that might have b
for example, through financial mismanagement that does not involve
personal gain and yet leads ¢o the loss and destruction of the property
of orphans. Although the text provides no indication as to the differ
ent ways in which destruction can be caused, they are nevertheless

ion is ex!

equally forbidden, As already stated, this
lent to what is known as obvious analogy (giyds jal
of identifying the effective cause of a textual ruling, and when this is
identitied the original ruling is analogically extended to all similar cases.
The effective cause of the ruling in the foregoing dyah is protection
of the orphans’ property, and any act which causes destruction of loss

of inference is equiva-

which consists

of such property falls under the same prohibition.”

IV. The Required Meaning (Iqtida” al-Nass)

This is a meaning on which the text itself is silent and yet which must
be read into it if it is to fulfil its proper objective. To give an example,
the Qur'in proclaims concerning the prohibited degrees of relations
in marriage: ‘Unlawful to you are your mothers and your daughters’

(al-Nisa’, 4:23).
Seis (Sigel Side con

This text docs not mention the word ‘marriage’, but even so this must
be read into the text to complete its meaning. Similarly, we read else-
where in the Qur'dn: "Unlawful to you are the dead carcass and
blood’ (al-Maidah, 5:3), without mentioning that these are unlawful
for consumption

pally dell Sole oe

But the text requires the missing element to be supplied in order that
it may convey 3 complete meaning,

To give a slightly different example of igtida’ al-nagy, we may refer
o the hadith which states: "There is no fast [ld siydma} for anyone who
has not intended it from the night before.’

Rules of Interpretation I; al-Dalalat (Textual Implications) 173

JO pod pe

The missing element could either be that the fasting is ‘invalid’ or
that it is ‘incomplete’. The Hanafis have upheld the latter whereas
the Shafi‘ have read the former meaning into this hadith. Whichever
meaning is upheld, the consequences that it m:
accordingly

To summarise, a legal text may be interpreted through the applica-
tion of any one or more of the four varieties of textual implications.
The meaning that is arrived at may be indicated in the words of the
text, by the signs that occur therein, by inference, or by the supple-
mentation of a missing element. These methods of legal construction
may be applied individually or in combination with one another, and
they are all designed to carry the text to its proper and logical conclu
sions.

As stated above, in the event of a conflict between the ‘ibdrah al-nags
and the ishdrah al-najs, the former prevails over the latter. This may
be illustrated by a reference to the two Qur'inic dyilt conceming
the punishment of murder. One of these explicitly proclaims that
‘retaliation is prescribed for you in cases of murder’ (al-Baqarah,

2:178)
Aah elaill Sle

But elsewhere in the Qur'dn, it is provided: "Whoever deliberately
kills a believer, his punishment will be permanent hellfire’ (al-Nisi’,
4:93).

lead to will vary

Lp AML: igen oh jand Lanace Line JS oy

The explicit meaning of the first dyah provides that the murderer must
be retaliated against; the explicit meaning of the second dyah is that
the murderer is punished with permanent hellfire. Thealluded mean

ing of the second ayah is that retaliation is not a required punishment
for murder; instead the murderer will, according to the explicit terms
of this dyah, be punished in the Hereafter. There is no conflict in the
explicit meanings of the two texts, but only between the explicit
meaning of the first and the alluded meaning of the second. A conilict
thus arises as to which of the two punishments are to be upheld;
but since the first ruling constitutes the explicit meaning of the text

174 PRINCIPLES OF ISLAMIC JURISPRUDENCE

and the second is an alluded meaning, the former prevails over the
latter."

For another illustration of a conflict between the explicit and alluded
meanings, we refer to the Qur’inic text which informs the believers
of the dignified status of the martyrs, as follows: ‘And think not of
those who are slain in God's way as dead; they are alive, finding their
sustenance in the presence of God’ (Al ‘Imrin, 3:169)

chet fe Uipl Bi fee Q 1s gall mt Vy

O95 2 As

The explicit ously declare the martyrs to be alive,
and that anyone who thinks they are dead is mistaken. The alluded
meaning of this text is held to be that no fizneral prayer is necessary
for the martyr as he is deemed to be still alive, However, this conclu~
sion conflicts with the explicit meaning of another Qur'dnic text
which orders, concerning the dead in general, to ‘pray on their behalf
{salli ‘alayhim) as your prayers are a source of tranquillity for them"
{al-Tawbah, 9:103).

ph rw tbe OL tele ey

of this text oby

This text explicitly requires prayers for everyone, martyr or other-
wise, as they are dead literally and juridically and their property may
be inherited by their legal heirs. This is the explicit meaning of this
second text and it prevails over the alluded meaning of the first."*

To illustrate the conflict between the alluded meaning and the
inferred meaning, we refer firstly to the Qur'tnic text on the expiation
of erroneous killing which states: "The expiation [kaffarall] of anyone
who erroneously kills a believer is to set free a Muslim slave" (al-Nisi’,
4:92)

AB) pr law Lape Jo ony

The explicit meaning of this dyah ts that erroneous homicide must be
expiated by releasing a Muslim slave. By way of inference, it is further

understood that freeing a Muslim slave would also be required in
intentional homicide, for the purpose of kaffirah is compensation and
atonement for a sin, [tis argued that the murderer is also a sinner and
has committed a sin far greater then the one who kills a8 a result of

Rules of Interpretation Il: al-Dalalar (Textual Implications) 175

error. The inferred meaning derived in this way is that the murderer
is liable, at least, to the same kaffirah which is required in erroneous
homicide. However, according to the next ayah in the same passage,
to which reference has already been made: "Whoever deliberately
kills a believer, his punishment is permanent hell-fire’ (al-Nisi’, 4:93)

gd WAIL paige vel jad Lance Lage JS oy

The alluded meaning of this text is that freeing a slave is not required
in intentional killing This meaning is understood from the explicit
terms of this dyah which provide that the punishment of deliberate
homicide is a permanent abode in hell. This in tum implies that murder
is an unpardonable sin, and, as such, there is no room for kaffirah in
cases of murder. This is the alluded meaning of the second dyah; and
a conflict arises between this and the inferred meaning of the first
yah, The alluded meaning, which is that the murderer is not required
to pay a kaffirah, takes priority over the inferred meaning that renders
him liable to payment."

The Shafi‘is are in disagreement with the Hanafls on the priority
of the alluded meaning over the inferred meaning. According to the
Shifi'ls, the inferred meaning takes priority over the alluded meaning.
The reason given for this is that the former is founded in both the
language and rationale of the text whereas the latter is not; that the
alladed meaning is only derived from a sign which is basically weaker
than the words and the rationale of the text, and that the inferred
meaning is a closer meaning and should therefore be given priority
over the alluded meaning. It is on the basis of this analysis that, in the
foregoing example, the Shifi'ls have given priority to the inferred
meaning of the text with the result that the murderer is also required
to pay the keaffirah,"*

V. Divergent Meaning (Mafhitm al-Mukhalafah) and the
Shafi't Classification of al-Dalalat

The basic rule to be stated at the outset here is that a legal text never
implies its opposite meaning, and that any interpretation that aims at
reading a divergent meaning into a given text is unwarranted and
untenable. If a legal text is at all capable of imparting a divergent
meaning, then there needs to be a separate text to validate it. But any
attempt to obtain two divergent meanings from one and the same
text is bound to defy the very essence and purpose of interpretation.

Say, | find nothing ; < 8
forth’ (al-An‘im, 6:14
Ja pst use dies aly
danke, pel dels So ylladinl YJ
be yin bs hae oS. Y
With reference to the latter pa
nat blood wh ot shee
most likely to oppose its ob
of unspile blood such as liver
blood, this 1s established no

a separate text. Liver and sple

hadi

of corpses and two f

and the spleer
cab pbely that Ota s Oleoy Ole td ob!
wJtnbn, 180 9

As already indicated, the Shati'ts !
fah. Bust to

ily

ferent approach

to mathiim al-mukha

this matter in its proper perspec-

tive, we need to elab

ate on the Shif'l approach to textual
implications (al-daldde) as a whole, and in the course of this general
discussion, we shall turn to malin al-mudhdlafah in particular.

Unlike the Hiznafi classification of textual in

plications into four

of Interpretation II: al-Dalalat (Textual Implications)

the Shifi

have initially divided al-d.

types, flat into the two main
varieties of dalalah al-ma pronounced meaning) and dalilah
al-mafhiim (implied meaning). Both of these are derived from the

words and sentences of the text, the former from the obvious text ar
the latter come through logical and juridical construction thereof, Ar
example of daldlah al-mantig is the Qur’inic ayah which proclaims

thar *C 4

ale and prohibited usury’ (al-Bagarah, 2:27)

Dems eo at Joly

This text clearly speaks of the legality of sale and the prohibition of
usury. Dalla al-mangig has in tan been subdivided into two types,
namely dalalah al-igtida’ (required meaning), and dalilah al-isharah
alluded meaning). Both of these are either indicated in the words of

the text or constitute a necessary and integral part of its meaning, A:

difference bet

m this brief description, the n

will be noted, even fr
the Shifi'l and Hanafl approaches to the classification of al-daldlat i
more formal than real Abo Z.
all of the four Hanaf! variet
founded in the actual w
technical ditt
cations, they are basically all founded in the

four-fold Hanafi divisions of al-daldlat can be classified under daldlah

nrah has aptly observed that essenti

in one way or another,

al-dalilat arc

ds and sentences of the text. Despite the

ences that might exist between the four types of in

xt, In this way all of

mantiig
As the phrase itvelf indicates, dalilah al-manjig is concerned not
with the di g. but with the implications of spoken words
It is a meaning that is often a lo;
of the clear text. Note, for example, the following text on the shares
of the pare
left no other heirs: “And if he has no son and his parents are his heirs

¢ mean

ical extension, even a requirement.

en the latter has

in the estate of their deceased son w

then his mother is enntied to one third” (al- Niet’, 4:11)
C1 A ol yl yyy Uy dS OP
The preceeding portion of the same dyah provides, ‘And to cach of

the parents is a sixth of what be has left if he is survived by 2 son
When the two portions of the dyah are read together, it is implied
that the father’s portion in the first of the two situations is two-thirds,
3 conclusion which is implied in the explicit or spoken (mantiig)
portion of the text, even if the text itself is silent on che two-thirds
portion for the father

178 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Hanafls and Shafi‘ls have differed on whether khul divorce is
a divorce proper (Jalaq) or a mere annulment (faskh) of the marriage
contract. The Hanafis say that it is a divorce but the Shafi'is consider
it to be annulment and their conclusions are based on the actual
sequence of the words of the text, The implied meaning of the text,
or dalalah al-mantiig, has thus been understood differently by the two
schools. The text at issue is as follows

-¢ must be [pronounced] twice; then either keep them [divorced wives) in

fel co let them go with kindness. And luefol for you to take
any part of what you have given them, unlew y cannot obwery
the God-ordained limits. Then if within the lienits
of Ged, there is no blame on therm flr w ber freedom (ab
Bagarah

Okan cept sl Dy at Slaalp Ot» GrAblt
BLE Of Yee ca patble Lye of SS Je Vy
Gil oyte Lae VE pci Of BI oye Le YT

4 asl LS Lagde cls 3b

The latter part of this text is explicit on the choice that the wife is
granted ~ that she may retum the assets or dower she has received ~ but
the text does not specify exactly what the husband should do in return
He must take some action and the Hlanafls have answered this question
by saying that the dyah begins with the word falig and that it is precisely
what the husband is supposed to do ~ hence the conclusion that khul
is a variety of faldg, not of annulment. The Shifi'l conclusion that
khul’ is a form of faskh, not falig, is based on the sequence of words
in this dyah and the one that immediately follows. The next ayah thus
reads: ‘So if he divorces her [the third time}, she shall not be lawful
to him afterwards until she marries another man’ (al-Baqarah, 2:230)

ape boy} CSG ee sm op JF a Lyall Op
‘The Shafi‘is have argued that the initial dyah refers to. two fag,
then it makes a provision for khut and then the next dyah permits a

third and final palag. Now if kin!’ were to be a faliiq, the total numbers
of faldg would thus become more than three, hence the conclusion,

Rales of Interpretation I: al-Dalalat (Textual Implications) 179

by way of daldlah al-manpiiq, that khul is a form of annulment, not a
jalag. This is an example of alluded meaning (dalalah al-isharah),
whereas the first example conceming the father’s share in inheritance
was that of dalalah al-iqtida’ (required meaning).”” To give yet another
example of dalalah al-igtida’, suppose a person makes a bequest and
says: ‘I bequeath one thousand dinars to A and B; B's portion is three
hundred.’ The spoken words, or the clear text, just stops at this point;
then the conclusion has to be drawn, by way of daldlah al-manjig, that
A's portion is seven hundred.

Dalalah al-mafhim is an implied meaning that is not indicated in
the text but is arrived at by inference. This is to a large extent concur-
rent with what the Hanafls have termed daldlah al-nags, But the Shifi'ls
have more to say on daldlah al-mafhiim in that they sub-divide this
into the two types of mafhim al-muwifagah (harmonious meaning)
and mafhiim al-mukhdlafah (divergent meaning). The former is an
implicit meaning on which the text may be silent but which is never-
theless in harmony with its pronounced meaning. This harmonious
meaning (mafhiim al-muwifagah) may be equivalent to the pronounced
meaning (daldlah alemaniig), or it may be superior to it, If it is the
former, it is referred to as lahn al-khitdb (parallel meaning) and, if the
latter, it is known as fahud al-khifdb (superior meaning). For example,
to extend the Qur'inic ruling in sOra al-Nisi’ (4:10), which only
forbids “devouring the property of orphans’ to other forms of mis~
management and waste —is a parallel meaning (abn al-kehiab). But to
extend the Qur'anic text which forbids the utterance of ‘Fie’, that is,
the slightest word of contempt to, for instance, physical abuse of one’s
parents, is a meaning which is superior to the pronounced meaning
of the text." The validity of these forms of harmonious meanings is
approved by the ‘wlama’ of all schools (except the Zahirls) who are
generally in agreement with the basic concepts of mafhiim al-muwafagal.
Bus this is not the case with regard to mafhim al-mukhdlafah, on which
the ‘wlama” have disagreed.

‘Asnoted above, mafhiim al-mukhdlafah diverges from the pronounced
meaning (dalilah al-mantig) of the text, which may, however, be
either in harmony or in disharmony with it, It is only when mafhiim
‘al-mukhalafah is in harmony with the pronounced meaning of the text
that it is accepted as a valid form of interpretation, otherwise it is
rejected. For an example of the divergent meaning that is in harmony
with the pronounced meaning of the text, we may refer to the
hadith which states: “When the water reaches the level of qullatayn
[approximately two feet}, it does not carry dirt.

180 PRINCIP

5S OF ISLAMIC JURISPRUDENCE

wt fast d cacld et al 151

In this way when a polluting substance falls in water of such depth,
it is still regarded clean for the purposes of ablution. This is the
pronounced, or the explicit, meaning of the text. By way of mafhiim
al-mukhdlafah, it is understood that water below this level is capable
of retaining dirt, This is an interpretation deemed to be in harmony
with the pronounced meaning of the hadith.

According to the Shifi'ls, deduction by way of mafhilm al-mukhlafah
is acceptable only if it fulfils certain conditions, which are as follows:

firstly, that the divergent meaning does not exceed the scope of the
pronounced meaning. For example, the Qur’inic ayah which prohibits
saying *Fie' to one’s parents may not be given a divergent meaning
so as to make physical abuse of them permissible. Secondly, that the
divergent meaning has not been left out in the first place for a reason
such as fear or ignorance; for example, if a man orders his servant to
‘distribute this charity among the Muslims’, but by saying so he had
actually intended people in need, whether Muslims or non-Muslims,
and yet omitted to mention the latter for fear of being accused of
disunity by his fellow Muslims, Should there be evidence of the
existence of such a fear, then no divergent meaning should be deduced.
A similar case would be when a person says that ‘maintenance is
obligatory for ascendants and descendants’, while he did not know that
collaterals are also entitled to maintenance. Should there be evidence
of his ignorance on this point, then no divergent meaning should be
attempted to the effect, for example, of saying that maintenance is
not obligatory for collaterals. Thirdly, that the divergent meaning
does not go against that which is dominant and customary in favour
of something which is infrequent and rare. To give an example: the
Qur'an sates concerning the prohibited degrees of relationship in
marriage: ‘And forbidden to you are...your step-daughters who live
with you, born of your wives with whom you have consummated
the marriage; but there is no prohibition if you have not consum-
mated the marriage’ (al-Nist', 4:33).

BO oA plete SU pStlsy os Sale cam
Sale Che WB ck pales IS

Rules of Interpretation II: al-Dalalat (Textual Implications) 181

This text is explicit on the point that marriage to a stepdaughter who
is under the guardianship of her stepfather is forbidden to the latter.
By way of mafham al-mukhalafah, chis dyah might be taken to mean that
a stepdaughter who does not live in the house of her mother’s husband
may be lawfully married by the latter. But this would be a meaning
which relies on what would be a rare situation. The probable and
customary situation in this case would be that the stepdaughter lives
with her mother and her stepfather, which is why the Que'in refers
to this qualification, and not because it was meant to legalise marriage
with the stepdaughter who did not live with him.’ Fourthly, that the
original text is not formulated in response to a particular question or
event. For instance, the Prophet was once asked if free-grazing live-
stock was liable to zakth; and he answered in the affirmative. But this
answer does not imply that the stall-fed livestock is not lable to
zakah. The answer was originally given to a question which specified
the free-grazing livestock and not in order to exempt the stall-fed
variety from zakih. Fifthly, that the divergent meaning does not
depart from the reality, of the particular state of affairs, which the text
is known to have envisaged. For example, the Qur'in states in a
reference to relations between Muslims and non-Muslims: ‘Let not
the believers beftiend unbelievers to the exclusion of their fellow
believers’ (Al ‘Imran, 3:28)

aie gl Os> op ASS op SO pag dn Y

This dyah apparently forbids friendship with the unbelievers, but this
is not the purpose of the text. It was, in fact, revealed in reference to
a particular state of affairs, namely concerning a group of believers
who exclusively befriended the unbelievers, and they were forbidden
from doing this; it did not mean to impose a ban on friendship with
unbelievers. The text, in other words, responded to particular
situation and not the enactment of a general principle, and should
therefore not be taken out of context by recourse to mafhim
al-mukhdlafah. Sixthly, that the divergent meaning does not lead to
a conclusion that would oppose another textual ruling, To give an
example, we refer to the Quranic text on the requirement of
retaliation which states: ‘Retaliation is prescribed for you in cases
of murder: the free for the free, the slave for the slave, the woman
for the woman’ (al-Baqarah, 2:178).

182 PRINCIPLES OF ISLAMIC JURIS@RUDENCE

all dally JU A bal 9 plaill Sle
eh Ey

This text may not be taken by way of mafhiim al-mukhdlafah to mean
that a man is not retaliated against for murdering a woman. For such
a conchision would violate the explicit ruling of another Qur’inic
text which requires retaliation for all intentional homicides on the
jor life’ (al-Ma°idah, $:45)

The main restriction that the H. nposed on maflitim al:
mukhalafah is that it must not be applied to a revealed text, namely the
Qur'in and the Sunnah. As a method of interpretation, mafhiim al-
mukhalafah is thus validated only with regard to a non-revealed text.
Only in this context, that is in regard to rational proofs and man-made
law, can it provide a valid basis of juskm and ijtihdd, The main reason
that the Hanafls have given in support of this view is that the Qur'an
itself discourages reliance on mafhiim al-mukhalafah, for there are many
injunctions in the Qur’in and Sunnah whose meaning will be distorted
if they were to be given divergent interpretations. To give an example,
we read in the Qur'an, in a reference to the number of months that
God enacted on the day He created the universe, that there shall be
twelve months in a year. The text then continues: "Four of them are
sacred, so avoid committing acts of oppression {zubn] therein’ (al~
Tawbah, 9:36)

td Nyala a eailh gyal US p> darsl gee

By way of maphiim al-mukhdlafah, this text could be taken to mean
that acts of oppression are permissible during the rest of the year. This
would obviously corrupt the purpose of this text, as oppression is
always forbidden regardless of the time in which it is committed."
‘Similarly, there is a hadith which instructs the believers that ‘none of
you may urinate in permanently standing water nor may you take a
bath therein to cleanse yourselves of major pollution [janabah}',

A oe ab cols Vy flat 6 J p Stel Sy Y

broadest possible basis of ‘lif

fis hav

By way of mafhiim al-ukhalafah, this text could be taken to mean
that taking a bath other than the one specifically for jandbah is permis=
sible in such water, or that urinating is permissible in flowing water,

Rules of Interpretation Il: al-Dalalat (Textual Implications) 183

neither of which would be correct. Bathing in small ponds below a
certain depth is not permitted whether for jandbah or otherwise.

The Hanafis have further concluded that whenever necessary, the
Qur'an itself has stated the divergent implications of its own rulings
and when this is the case, the divergent meaning becomes an inte-
gral part of the text and must be implemented accordingly. This style
of Qur‘inic legislation suggests that if recourse t mafhiim al-mukhidlafah
were generally valid, there would be no need for it to be explicitly
spelled out in the Quranic text. The Qur'an, in other words, is self
contained and does not leave us to deduce the law from it by recourse
to divergent interpretation. Note, for example, the text which instructs
the husband to avoid sexual intercourse with his wife during her
menstruation. The text then immediately follows on to specify its
‘own divergent implication: “And approach them not until they are
clean. Bur when they have purified themselves, you may approach
them’ (al-Bagarah, 2:22)

PPD Opes IS Opal om CAREY
In the same sQr, there is another text, to which reference has already
been made, conceming the prohibition of marriage between the
stepdaughter and her stepfather who has consummated the marriage
with her mother. The text then continues to specify its divergent
meaning by providing that ‘there is no prohibition if you have not
consummated the marriage’ (al-Nis3', 4:23).

Sale Che ok pales 1 Sf oY

The Hanatis have thus concluded that mafhiim al-mukhdlafah is not
applicable to the musiis of the Qur’in and Sunnah, We only deduce from
the musiiy such rules as are in harmony with their explicit terms.”

The Shafi'is and the Milikis who validate the application of mafhiim
al-mukhalafah vo the nusiis have, in addition to the conditions that were
earlier stated, imposed further restrictions, which consist of specify-
ing exactly what forms of linguistic expressions are amenable to this
method of interpretation. For this purpose the Shifi'ls have sub-
divided mafhiim al-mukhalafah into four types. The main purpose of this
classification is co introduce greater accuracy into the use of mafhiim
al-mukhalafah, specifying that it is an acceptable method of deduction
‘only when it occurs in any of the following forms but not otherwise,

(1) Mafhiim al-sifah (amphcation of the attribute). When the ruling

184 PRINCIPLES OF ISLAMIC JURISPRUDENCE

of a text is dependent on the fulfilment of a quality or an attribute
then the ruling in question prevails only when that quality is present:
otherwise it lapses. This can be shown in the Que’inic text on the

ces of relations in marriage which includes "the wives

prohibited de
of your sons proceeding from your loins’ (al-Nist 4:23)

pSrbel oe pill pul Joey

The pronounced meaning of this text is the prohibition of the wife

of one’s own son in mariage. The son has thus been qualified in the
text by the phrase "proceeding from your loins’. By way of mafhiim
al-mukhalafah, it is concluded from this qualification that the wife of
an adopted son, ot of a son by fosterage (nadia), that is a child who
has suckled the breast of one’s wife, is not prohibited.’

(2) Mafhdm al-shart (implication of the condition). When the ruling
of a text is contingent on a condition, then the ruling prevails only
in the p
dhis is the Quir’d

sence of that condition, and otherwise lapses. An example of
text on the entitkement to maintenance of divorced
The text
proclaims: ‘If they are pregnant, then provide them with maintenance
until they deliver the child’ (al-Talaq, 65:6)

women who are observing their waiting period (‘iddall

AD cps om ete Isttsle Jr OVI oS Oly

The condition here is pregnancy, and the hukm applies only when this
condition is present. By way of mafhim al-mukhdlafah, it is concluded,
by those who validate this method at least, that maintenance is not
required if the divorced woman, who is finally divorced, is not preg-
nant, Similarly, the Que’anic test that provides a concession in regard
to fasting is conveyed in conditional terms, Having laid down the duty
of fasting, the text then continues: “But if anyone is ill or travelling,
the prescribed fasting should be observed later’ (al-Bagarah, 2:18$)

Pll gp baad pie de Elan pSir OS ory

By way of mafhim al-mukhdlafah, it is concluded that the concession
to break the fast does not apply if one is neither ill nor travelling,
which is a valid interpretation.

(3) Mafhiim al-ghdyah (implication of the extent). When the text

itself demarcates the extent or scope of the operation of its ruling, the
latter will prevail only within the scope of the stated limits and will

Rules of Interpretation Il: al-Dalalat (Textual Implications) 185

lapse when this limit is surpassed. To illustrate this, the Qur’snic text
on the time of fasting provides the farthest limit beyond which one
must stop eating and drinking during Ramadin: ‘Eat and drink until
you see the white streak of dawn in the horizon distinctly from the
black” (al-Bagarah, 2:187),

2p a oe ag dah 9S one ae La Als Ls

By way of mafhiim al-mukhdlafah, it is concluded that when whiteness
appears in the horizon, one may neither eat nor drink.””

(4) Mafhiim al-‘adad (implication of the stated number). When the
ruling of a text is conveyed in terms of a specified number, the
number so stated must be carefully observed. Thus the Qur’Anic text
on the punishment of adultery is clearly stated to be one hundred
lashes (al-Nor, 24:2). By way of mafhiim al-mulhdlafah this text is
taken to mean that it is not permissible either to increase or decrease
the stated number of lashes.

In conclusion, it may be said that the foregoing methods are gener
ally designed to encourage rational enquiry in the deduction of the
abkam from the divinely revealed sources. They provide the jurist and
the mujtahid with guidelines to ensure the propriety of interpretation
and ijtihdd, The restrictions imposed on the liberty of the myjtahid are
obvious enough in that the textual rulings of the Qur’in and Sunnah
must be treated carefully so that they are not stretched beyond the
limits of their correct implications. Yet the main thrust of the guide-
lines is encouragement of the exercise of rational enquiry in the under-
standing and implementation of the musi, The rules of interpretation
that are discussed under this and the preceding chapter are once again
indicative of the primacy of revelation over reason, and yet they are,
at the same time, an embodiment of the significant role that reason
must play side by side with revelation. The two are substantially
concurrent and complementary to one another.

4. halla “dim, py bays Badan, Ul, p. 447,
2 Khallif, "Zim, p. 145

5, Badein, Undl, pp. 41y-4aes Khai, Usa, p. 119

4 AbG Zahrah, Uh, p. 111; Khuiri, Uy p. 120.

§. Tabrel, Muhbat, 11, 1003, hadfth ne, 3354; Khallaf “Uhm, p. va

186 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Baden, Ut 4

> hal the p

ia pe

% 4395 K une CHAPTER SIX

1A. Badedn, Un, p. 439; Khudie Hiss. Commands and Prohibitions

r a ot 46; Salty, Mabahirh

9 Toa Miah, Soman ee The language of the Qur'an (and the Sunnal) differs from that of

4, Zuheme, Ue Hae modem statutes in that Qur'inic legislation is not confined to
Hina, Badrin, Uydl, po ¢ commands and prohibitions and their consequences, but is often
Ibid, p, 126; Buds Ase coupled with an appeal to the conscience of the individual. This moral

appeal may consist of a persuasion or a warning, an allusion to the
¥. Badrar pay

possible benefit or harm that may accrue from observing or violating

an injunction, or a promise of reward/punishment in the Hereafter.
Modem laws are often devoid of such appeals, as they are usually
confined to an exposition of i

Commands and prohibitions in the Qur'an occur in a variety

perative rules and their tangible results.

34 Tid p of forms. While an injunction is normally expected to be in the
imperative mood, there are occasions when a simple past is used as a
For example, the injunctions that ‘retaliation is prescribed

substitute

for you in cases of murder

atl 9 lai! Sle

and that “fasting is prescribed for you" (al-Baqarah, 2:178 and 183)

Healt Sle

are both expressed in the past tense. Injunctions are also conveyed in
the present participle (muda). For example, the command that ‘any-
‘one who sees the month [or is present at the month} shall fast therein
[falyaswmbu} (al-Baqarah, 2:18); and also the text which reads: “And
mothers shall suckle [yurdi'na] their children for two whole years [that

188 PRINCIPLES OF ISLAMIC JURISPRUDENCE

is} for one who desires to complete the time of suckling’ (al-Baqarah,

2233)
pe Ob abl oh Aba’ cal card sl aes SbUlyy
acts Ji

Similarly, a Qu’3nic injunction may occur in the form of a moral

form of conduct, such as the rule on the
ellings which provides: ‘It is no virtue to enter

condemnation of a certa

sanctity of private di

houses from the back’ (al-Bagarah, 2:189)

Lay yh cp Sed et Ob alt ny

nic command or prohibition may be conveyed in the

Also, a Que'l
form of an allusion to the consequences of a form of conduct, such
asa promise of reward or punishment in the hereafter. For example,
after expounding the rules of inheritance in sOra al-Nis’' (4:13=14)
the text goes on to promise to those who observe them a reward, and
warns violators of a punishment, in the hereafter

1, Commands

A command proper (amr) is defined as a verbal demand to do some-
thing issued from a position of superiority over those inferior.’
Command in this sense differs from both supplication (du‘a’) and
request (iltimis) in that the former is a demand from an inferior to
‘one who is superior, whereas a request is a demand among people of
equal or near-cqual status. Since a verbal command can mean different
things, namely an obligatory order, a mere recommendation, or even
permissibility, the ‘ulama’ have differed as to which of these is the
primary and which the secondary meaning of a command. Some have
held the view that amr is in the nature of a homonym (mushtarak)
which imparts all of these meanings. Others have held that amir partakes
of only two of these concepts, namely obligation and recommenda-
tion, but not permissibility, Still others have held that amr implies a
permission to do something and that this is the widest meaning of
amr, which is common to all three of the foregoing concepts.*
According to the majority opinion, however, a command by itself,
that is, when it is not attended by clues or circumstances that might
give ita particular meaning, implies obligation or an emphatic demand

Comman

nd Prohibitions 189

only. But this may change in the event of other indications being
present, which might reduce a command to permissibility, recom-
mendation, or indeed to a variety of other meanings. Thus when we
read in the Qur’in commands such as Auli? wa-shraba ("eat and drink’)
(al-A‘rif, 7:31), the indications are that they amount to no more than
permissibility (ibahah); for eating and drinking are the necessities of
human life, and a command in respect of them must logically amount
to permissibility only, Similarly, the Qur'inic permission in respect
of hunting after the completion of the hajj ceremonies given in sfira
al-Ma'idah (5:2) and its address to the believers to “scatter in the land”
(fa’ntashira fi'l-ard) after performing the Friday prayers (al-Jumu‘ah,
62:10) are both in the imperative form. But in both cases the purpose
is to render these activities permissible only,’

A command may likewise convey a recommendation if there are
indications to warrant this conclusion. Thisis, for example, the case with
regard to the Qur'dnic command that requires the documentation of
loans: “When you give or take a loan for a fixed period, write it down’
(al-Bagarah, 2:282)

Oy S Ue gees el SL gate Hel 13)

However, from an indication which occurs in the next d
same sfira, it is concluded that the command here implics a recom-
mendation (nadb) only, This dyah reads: “And if one of you deposit a
thing on trust, let the trustee [faithfully] discharge his trust’ (al-Bagarah,
3:283),

WOU E59) Sal 9 pb Law, Sam pl of
Here the use of the word ‘trust’ (amanah) signifies that the creditor
may trust the debtor even without any writing.’ The majority of
‘ulama’ have held the same view regarding the requirement of
witnesses in commercial contracts, which is the subject of another
Quranic command occurring in the same passage, known as the dyah
‘al-mudayanah (2:282): “Whenever you enter a contract of sale, let it
be witnessed and let neither the scribe nor the witness suffer harm.’

dope Vy CAS yay Vy pals 15} Vpgtly
‘The Zshirt ‘wlama’ have upheld the obvious meaning of these provi-
sions and have made documentation a requirement of every loan, or

190 PRINCIPLES OF ISLAMIC JURISPRUDENCE

any form of deferred payment, and have made witnesses a requirement
of every contract of sale, T view, is more conducive to the
fulfilment of contracts and the preve ong people
A con id may, according to the indications provided by the
context and circumstances, imply a threat, such as the Qur’inic
address to the unbelievers: ‘Do what you wish’ (Fugsilat, 41:40)

is, inn thi

on of disp)

pote Le Nylacl

and to the devil: ‘Lead to destruction those that you can’ (Bani Isri

17:64).

canlael oe 5 Heely

A command may similarly imply contempe (ihdnah), such as the
Qur'inic address to the unbelievers on the Day of Judgement: "Taste
[the torture], you mighty and honourable!’ A command may some-
times imply suppl neone says, for example, ‘O Lord
grant me forgiveness’, and indeed a host of other meanings which
may be understood in the light of the context and surrounding
circumstances." As already noted, the majority of “ulam ave held that
a. command normally conveys an obligation unless there are indications
to suggest otherwise

The Lawgiver may at times order something which has hitherto been
prohibited. The question then arises as to the nature of a command
which follows a prohibition (al-amr ba'd al-hagar); does it convey an
obligation or mere permissibility? The majority of ‘wlama’ have held
the view that a command following a prohibition means permissibility,
not obligation, Two examples of such a command in the Qur'an have
already been given above in the context of the permission to hunt
following its prohibition during the hajj ceremonies and the permis-
sion to conduct trade following its prohibition at the time of the Friday
prayers (al-Ma’idah, 5:2; and al-Jumu'sh, 62:10 respectively)” An
example of such a command in the Sunnah is the hadith in which the
Prophet is reported to have said: “I had forbidden you from visiting
graves. Nay, visit them, for it reminds you of the hereafter.”

Ui bagyg YI pall 5 oe pS os”
Vb pS Sas

ation when s¢

Commands and Prohibitions 191

The Hanafis have taken the view that a command following a
probibition conveys an obligation, which is the primary meaning of
a command and that this basic meaning remains unaffected by what
might have preceded it. The basic evidence that establishes something
as wijab does not distinguish between an amr that is preceded by a
prohibition or is not preceded by onc. Some Hanbali ‘lama’, and also
the Hanafi scholar Kamil ibn al-Humim, have held that a command
following a prohibition removes the prohibition and the matter is
consequently restored to its original state, that is, the state in which
it was prior to the prohibition. Zaydan has considered this to be the
most appropriate view."

The next question that arises in this connection is whether a
command requires a single compliance or repetition. According to the
majority view, this question can only be determined in the light of
indications which might specify that repeated performance is required
However, in the absence of such indications, a single instance of
performance is the minimum requirement of a command. Among the
indications that determine repetition is when a command is issued in
conditional terms. For example, the Qur'inic provision ‘if you are
impure then clean yourselves’ (al-Ma'idah, $:6)

bye Lr 9S Oly

or the text that states: “The adulterer and adulteress, flog them each
one hundred lashes’

Baby Whe Lager domly JS Iga gi ply del)

that is, if they commit adultery (al-Nor, 24:2). Since the command
to take a bath in the first dyah is conditional on jandbah, that is, on
sexual intercourse, then a bath must be taken following every instance
of sexual intercourse. Similarly, when a command is dependent on a
cause or an attribute, then it must be fulfilled whenever the cause or
the attribute is present. The Qur'inic command, for example, that
reads: ‘Perform the salah at the decline of the sun" (Bant Isri'il, 17:18)

nwt Sy ahead gil

requires repeated performance at every instance when the cause for
it is present, that is, when the specified time of galih arrives.'*
‘Some Shafi'is scholars and the majority of Hanbalis are of the view

192 PRINCIPLES OF ISLAMIC JURISPRUDENCE

that a command requires sustained repetition throughout the lifetime
of its audience unless there is evidence to suggest otherwise. A refer-
ence is made, in support of this view, to the incident when the Prophet
addressed the people and said that "God has prescribed the hajj as a
duty upon you.’ A man then asked the question ‘Is it every year, O
Messenger of God? To this the Prophet replied “If I said it, it would
have been so,..Hajf is required only once and more than that is
supererogatory,’ From this argument it has been advanced that the
man who asked the question evidently knew the Arabic language and
ifs command did not require repetition he would not have asked the
question in the first place, This is, however, considered to be a rather
weak argument, for it is possible to say just the opposite in chat if a
command had conveyed a repetition as a matter of linguistic certainty
the man would have not raised any question about it. The episode
thus remains inconclusive on the subject of repetition."

As for the question of whether a command requires immediate or
delayed performance, it is once again observed that the command
itself merely consists of a demand, and the manner of its performance
must be determined in the light of indications and surrounding
circumstances. When, for example, A tells B to ‘do such and such
now’, o alternatively orders him to ‘do such and such tomorrow’,
both orders are valid and there is no. contradiction er, ifa
command were to require immediate execution then the word ‘now
in the first order would be superfluous just as the word ‘tomorrow’ in
the second order would be contradictory. When a person commands
another to ‘bring me some water’ while he is thirsty, then by virtue
of this indication, the command requires immediate performance just
as the order to ‘callect the rent’ when it is given, say, in the middle
of the month while the rent is collected at the end of each month,
must mean delayed performance.

Thus it is obvious that the commandant may specify a particular
time in which the command mast be executed. The time limit may
be strict or it may be flexible. If it is flexible, like the command to
perform the obligatory salah, then performance may be delayed until
the last segment of the prescribed time. But if the command itself
specifies no time limit, such as the order to perform an expiation
(kaffirah), then execution may be delayed indefinitely within the
expected limits of one’s lifetime. However, given the uncertainty of
the time of one’s death, an early performance is recommended in
regard to kaffinde."*

And lastly, the question arises as to whether a command to do

Howe

Commands and Prohibitions 193

something implies the prohibition of its opposite. According to the
majority view, a command to do something does imply the prohibi-
tion of its opposite, regardless of whether the opposite in question
consists of a single act or of a plurality of acts, Thus when a person
is ordered to move, he is in the meantime forbidden to remain still;
or when a person is ordered to stand, he is forbidden from doing any
of a number of opposing acts, such as sitting, crouching, lying down,
etc. However, some ‘ulama’, including al-Juwaynf, al-Ghazals, Ibn
al-Hajib and the Mu‘uazilah, have held that 2 command does not
imply the prohibition of its opposite. A group of the Hanafl and
Shifi'l ‘wlamd’ have held that only one of the several opposing acts,
whether known or unknown, is prohibited, but not all."" There are
those who maintain that the exact opposite of a command has to be
determined by looking at the command itself. If the command conveys
an obligation (wyjiib), then its opposite would be a prohibition (tahrim),
but it would be an abomination (karihiyyah) if the command only
conveyed a recommendation (nad#) in the first place, According to yet
another view, the ruling here is confined to the imperative command,
thereby excluding commands that only convey recommendation
The other limb of this equation is also generally upheld in that a
prohibition not to do something conveys in the meantime a command
in respect of doing the same. Thus the Qur'Snic dyah (al-Bagarah,
2:228) conceming divorced women that ‘it is not lawful for them to
conceal what God has created in their wombs’

ee 9 BI Gleb aS ol od JAY

conveys in the meantime a command that they should reveal the facts
of their pregnancy. Similarly, when we read in the Qur'in the
command ‘tell the believers to lower theit gaze’ when encountering
members af the opposite sex, it conveys in the meantime a prohibi~
tion in respect of the lascivious gaze, The result of such differences
would obviously have a bearing on whether the person who commits
the opposite of a command must be penalised and, if so, to what
extent, Specific answers to such questions can only be determined in
the light of the surrounding circumstances and the state of mind of
the individual concerned, as well as the general objectives of the law
that can be ascertained in a given command.

NCIPLES OF ISLAMIC JURISPRUDENCE

194

Il. Prohibitions

is defined asa

Prohibition (naky), being the opposite of a comm
mand the avoidance of doing something

word or words which ¢
sition of superiority to one who is inferior."* The

addressed from a pi
ohibitory order in Arabic is that of a negative

typical form of
command beginning with /d such as /d taf“al (do not), or the Qur’anic
prohibition which reads ‘Slay not the life which God has made sacred

BUY Siem gh pid ys Vy

A prohibition may be expounded in a statement (jumlah khabariyyah)
such as occurs, Qur'in (alk-MYidah, $23)
‘Prohibited to you are the flesh of dead corpses and blood’

pally Aah Sale an >

or in the form of a present participle, such as God “forbids immorality
and evil’ (al-Nabl, 16:90)

Subly clonal oe oy

for example, in the

A prohibition is also conveyed by denial of permissibility (nafy al-hall)
such as in the following text: ‘When he divorces her [three times}
she is no longer lawful for him unless she marries another man’ (al-

Bagarah, 2:230)

ope br 95 DSS Gor de oe JF Ob pale op
A prohibition may sometimes occur in the form of a command which
requires the avoidance of something, such as the Qur’anic phrase wa
dhara al-bay (‘abandon sale’, that is during the time of Friday salah)
in sdra al-Jumu'ah (62:9), oF wajtanibi qaw! al-zdr (avoid lying’) in
sia al-Hajj (22:30), or may occur in a variety of other forms that are
found in the Que’in.

A prohibition, like a command, may convey a variety of meanings.
Although the primary meaning of nahy is illegality, or fabri, nahy is
also used to imply mere reprehension (kardhiyyah), or guidance (irshad),
or reprimand (ta'dib), or supplication (du'a’). An example of nahy

which implies reprehension is the Qur'inic ayah addressing the

Commands and Prohibitions 195

believers to “prohibit not (ld tuharrini] the good things that God has
made lawful t you’ (al-Ms'idah, 5:87).

Sb Bt JT lb FLT coll py
Nahy which conveys moral guidance may be illustrated by the
Quranic dyah addressing the believers to ‘ask not questions about

things which, if made plain to you, may cause you trouble
(al-Mi'idah, ¢:101),

pS I SI AF Of Ll oo WLS YLT sal Ul

An example of nahy which implies a threat is when a master tells his
recalcitrant servant: ‘Don't follow what I say and you will see.’ An
example of nahy which conveys supplication in the Qur’in occurs in
sOra al-Bagarah (2:286) which reads: “Our Lord, condemn us not if
we forget or make a mistake.’

tibet yf Lo) Uieip Yu,

Since nahy can convey several meanings, the ‘ulamd’ have differed
as to which of these is its primary (hagfg/) as apposed to secondary or
metaphorical meanings. Some have held that illegality (tabrim) is the
primary meaning of nahy while others consider reprehension
(kardhiyyah) to be the orignal meaning of naly. According to yet
another view, nahy is a homonym in respect of both. The majority
(jumbir) of ‘ulama’ have held the view that nahy primarily implies
tabrim, a meaning which will be presumed to prevail unless there are
indications to suggest otherwise. An example of naly in the Qur'in
that has retained its primary meaning is the phrase ‘la taqrula’ in the
yah which states “Slay not life which God has made sacred (al-An‘im,
6:11).

Bi p> gh pel ke Vy

There is no indication in this text to warrant a departure from the
primary meaning of {@ tagtuld, which must therefore prevail. The
primary meaning of nahy may be abandoned for a figurative meaning
ifthere is an indication to justify this. Hence the phrase "ld m'dehidhn™
(condemn us not’) implies:supplication, as the demand here is
addressed to Almighty God, and is hence a demand from a position

196 PRINCIPLES OF ISLAMIC JURISPRUDENCE

cates that the correct meaning of nahy in this

of inferiority, which ix
context is supplication, or du‘a'

Ill. The Value of Legal Injunctions

The object of a prohibition may be to prevent an act such as adultery
(zini), ot it may be to prevent the utterance of words such as those
he sale of dead corpses, or of a freeman, by

purporting to eff
means of offer and acc
not produce any Fi
paternity is established through zind; on the contrary
is liable to pu oncluded and ne
right of ownership is proven as a result of the sale of a corpse.

If the object of prohibition is an act, and it is prohibited owing to
an extraneous attribute rather than the essence of the act itself, such
as fasting on the day of ‘fd, then the act is null and woid (bapil) accord~
ing to the Shifi‘ts but is irregular (fasid) according to the Hanafi. The
act, in other words, can produce no legal result according to the Shafi"
but does create legal consequences according to the Hanafls, although
it is basically sinful. The Hanafls consider such acts to be defective
and must be dissolved by means of annulment (faskh), or rectified if
possible. If the prohibition consists of words such as concluding a
contract of sale which partakes of usury, it is still biti! according to
the Shafi'ls but sid according to the Hanafls, which means that it
should either be revoked or amended to the extent that it is purified
of its usurious content.

The position is, however, different with regard to devotional matters

Cibadat) whose purpose is seeking the pleasure of God. The fasid in
this context is equivalent to bafil, Hence there is no merit to be gained
by fasting on the day of ‘id, nor will it be taken into account in
compensation to the fasting owed by the mukallaf.
With regard co mu'amalat, if the probibition is due to an external
factor, such as a sale concluded at the time of the Friday prayer, the
majority maintains that all the legal consequences will follow from
the prohibited act, although the perpetrator will have incurred a sin.
Thus the sale so concluded will prove the right of ownership, which is
however, deficient and should be rescinded at an early opportunity."*
Further detail on the fasid and bafil can be found in our discustion of
the ahkiim, which is the subject of a separate chapter

As for the question of whether a prohibition requires. both
immediate as well as repeated compliance, the ‘wlamd’ are generally

ce, In either case, the prohibition does

‘ets whatsoever. Hence no right of

\© perpetrator

hment. Similarly, no contract is

Commands and Prohibitions 197

in agreement that it does and that this is the only way a prohibition
can be observed. Unless the object of a prohibition is avoided at
all times, the prohibition is basically not observed. It is therefore
Necessary to avoid the prohibited act as from the moment it is issued
and whenever it is applicable. This is the case with regard to prohi-
bitions that are not qualified in any way, such as the Qur'inic text
conceming the property of orphans which states: ‘Do not approach
the property of the orphan except in the way that is best’ (al-An‘am,
6:151).

cd ft ll Ul pad Jb Lai Vy

However, if a prohibition is qualified by a condition that overrules
immediate compliance, then it has to be observed within the mean:
ing of that condition. An example of this occurs in the Qur’in
(al-Mumtabinah, 60:10) which reads, in an address to the believers
“When there come to you believing women refugees, examine [and
test] them. If you find that they are believers, then send them not back
to the unbelievers. Gad knows best as to their faith.”

pth Oh algs Slee SF ebe IF LeT gill Ll
+ USS) payor FW Ole ga pacale of
Ally pel &

In this dyah, the prohibition (not to send them back) is conditional
upon finding that they are believers, and until then the prohibition
‘must remain in abeyance.”” There is a difference between a command
and a prohibition in that the purpose of the former is to create some-
thing or to establish the existence of something, and this is realised
by a single instance of execution, and there is basically no need for
repetition. A prohibition, on the other hand, aims at the absence of
something, and this cannot be realised unless it is absent all the time.
A single instance of absence is thus not enough to fulfil the purpose
of a prohibition.”

As already stated, 2 command that succeeds a prohibition conveys
permissibility only. The position is once again different with regard
to a prohibition: whenever a prohibition succeeds a command, it
conveys illegality or tabrim, not mere permissibility.**

Injunctions, whether occurring in the Qur'an or the Sunnah, are of

198 PRINCIPLES OF ISLAMIC JURISPRUDENCE

sarth). Explicit commands

two types: explicit (sardh) and implicit (ghay
and prohibitions require total obedience without any allowance for
individual circumstances and regardless of whether they are found to
ence of devotion (‘ibadah) that
ty or otherwise of an

be rational or not, for it is in the ess

tiona

‘obedience does not depend on the
injunction. The question arises as to whether one should adopt a
literal approach to the enforcement of commands and prohibitions,
or allow considerations of rationality and mdslahah to play a part in

the manner of their implementation, For example, the hadith which

des that the owners of livestock must give “one
pe followed literally

prov n forty sheep’

in zakih

hould this provision or could we

say that the equivalent price of one of many sheep could also be given
in zakdh? Similarly, when the Qur'an enjoins the Muslims concem-
ing attendance at the Friday congregational prayers to ‘rush to the

remembrance of God and abandon sale’ (al-Jumu‘ah, 62:9),
coll lysdy abl 3 Lynd

should the word rush (far'aw) be taken literally or in the sense of an
emphasis on diligence at attending the Priday prayers? A similar ques
tion can be raised with regard to the second part of the same dyah
which commands the Muslims to ‘abandon sale’ (wa dhani'l-bay’)
Should this be taken to imply that a sale that has occurred at the speci
fied time is actually unlawful and void, or should it once again be
taken as an order that requires perseverance and consistent observance?
Should one follow the main objective of the Lawgiver or the literal
requirements of the text which convey a command or a prohibition?
These are but some of the questions that are asked conceming the
correct understanding of Qur’dnic injunctions.*?

The implicit injunctions are also divided into two types. The first
of these is when a ruling of the Qur'in is conveyed in implicit terms
but has been substantiated by the explicit terms of the hadith, in which
case it becomes equivalent to an explicit ruling.”* The second type of
implicit injunction is when a ruling of the Qur’in occurs, not in the
form of a command or a prohibition, but as praise or condemnation
of certain conduct, The precise import of such provisions cannot
always be ascertained in respect of whether they convey an injunction
or mere warning or recommendation as the case may be. Note, for
example, the text which reads that God ‘does not love the prodigals’
(al ~A ‘raf, 7:31).

Commands and Prohibitions 199

od all Ce Y 4}

The text of this dyah does not indicate the precise legal or religious
enormity of extravagance, and it cannot be ascertained whether
extravagance is prohibited or merely disapproved of

Another question that merits attention in the study of commands
and prohibitions is related to the means that lead to the performance
of a command, of the avoidance of a prohibition, The question is
whether the means should also be covered by the rules that regulate
their ends. Briefly, the answer to this question is in the affirmative
The means that lead to the observance of commands and prohibitions
are covered by the same ruling which applies to the command/
prohibition in the first place.** This is indicated by the legal maxim
“What is essential for the completion of 3 wajib itself becomes a wijib,
We may here refer to two different situations, one of which is that
the means to a wijib may be the subject matter of a separate command,
in which case the matter would fall outside the scope of our discus-
sion, for in that case the means and the ends are each regulated by their
own rules. An example of this is ablution (wudi’) which is comple
mentary to salih but is regulated under a separate command; and,
secondly, when the means on which a wijib depends is not the subject
of separate ruling, This is our main area of concem here and the

sland’ have generally held that the means here becomes a wajib under
the same command that governs the end. Thus, if performing the baj/
necessitates travelling to Mecca, then this activity is also covered by
the initial command and becomes an integral part of it. Similarly, if
the Qur’inic command conceming consultation (Al “Imein, 3:159)
cannot be implemented without creating a consultative assembly, then
this too becomes a requirement for the same command. We may thus
conclude by saying that the means to a wajib becomes a part of that
wajib if the means in question is not the subject of a separate
command.

‘A mujtahid who deduces the law from a given text must be
adequately familiar with the language of the Qur'an, and must know
that the abkdm are not only expressed in the imperative but that a
praise or 2 promise of reward may in effect be equivalent to a
command. Similarly, a mere denunciation, a threat of punishment in
the Hereafter, or a reference to the adverse consequences of a form
of conduct, may be equivalens to a prohibition.” The distinction as
to whether a command in the Qur’in conveys an obligation (wxjib),

Commands and Prohibitions 201

200 PRINCIPLES OF 151 RISPRUDENCE
= mill savtul 7 Ghazall, Mustag
a recommendation (nadi nisi ibabah) x reatment of corunands as pibinons see Shanbl, Muandfagi
lookir he meaning of the we the Qur's 4. Ibid, 113,93
the value (hukm) of a command, av paid ly to th 1 i
grammatical form of the words in whic 0 Abo Z.
he general objectives of the law. Th a tory 37. Shitibt, Munwifagit, 1
ext. To determine whether a prohibition con im
« therefore be fully inf f
f the Shariah so ¢ able tc

hal ‘

J. Dadian, Uyal, p.

4. Ibid. whist, b

6. Khalaf, "Im

A Wadelny, Lith, pp. 9 PP ie

». Badri, Ul, p, 963; Mi ‘

Shawkat, Inhiit, pp, 8-9; Wadein, Uhl, p. yoy

tbo Maz, thkiim, 11, 294; Shawn, I :

+. Shawk3n, Inhi, pp. 99-100; Badrin. Ui, pp

Shawkiaf, inhi, pp.

CHAPTER SEVEN

laskh (Abrogation)

Literally, nasklt means ‘obliteration’, such as in nasakhat alo athar
al-masby, meaning ‘the wind obliterated the footprint’. Naskh also
means transcription or transfer (al-nagl wa al-tahufl) of something
from one state to another while its essence remains unchanged. In
this sense, naskh has been used in the Qur’Snic dyah which reads: “innd
kunnd nastansikhw ma kuntum ta'maliin’, that is, “Verily We write all
that you do’ (al-Jathiyah, 45:29). This usage of naskh can also be seen
in the familiar Arabic expressions tandsukh al-anuith (reincarnation)
and tandsukh al-mawirith (the transfer of inheritance from persons to
persons). The ‘wama’ have differed as to which of these two mean-
ings of naskh is the literal (hagigi) as opposed to that which might be
metaphorical (majazf), Some ‘ulama’, including AbO Bakr al-B3gillant
and al-Ghazali, have held that ‘naskh’ is a homonym and applies
equally to either of its two meanings. According to the majority
view, however, obliteration (al-raf we al-izlah) is the primary, and
transcription or transfer is the secondary meaning of naskh."

‘Naikh may be defined as the suspension or replacement of one
Shari‘ah ruling by another, provided that the latter is of a subsequent
origin, and that the two rulings are enacted separately from one
another. According to this definition, naskh operates with regard to
the rules of Shart'ah only, a proviso which precludes the application
of naskh to rules that are founded in rationality (‘ag)) alone. The hukm,
or ruling, in this definition not only includes commands and prohi-
bitions but also the three intermediate categories of recommended,
reprehensible and mubah. The requirement that the two rulings must
be separate means that each must be enacted in a separate text, for

Naskh (Abrogation) 2

when they both occur in one and the same passage, it is likely that
‘one complements or qualifies the other, or that one may embody a
condition or an exception to the other.*

Abrogation applies almost exclusively to the Qur'an and the Sunnal;
its application to ima and giyds, as will later be explained, has been
generally overruled. And even then, the application of naikh to the
Qur'an and Sunnah is confined, in terms of time, to one period only,
which is the lifetime of the Prophet. There is, in other words, no
naskh after the demise of the Prophet. But during his lifeame, there
‘were instances when some of the rulings of the Qur'in and Sunnah
were either totally or partially repealed by subsequent rulings. This
was due mainly to the change of circumstances in the life of the
community and the fact that the revelation of the Qur’3n spanned a
period of twenty-three years. The ‘wama’ are unanimous on the
occurrence of maskh in the Sunnah, It is, however, with regard to the
occurrence of naskh in the Qur'an on which there is some disagree-
ment, both in principle and on the number of instances in which
naskh is said to have occurred in the Qur'an?

Abrogation is, by and large, a Medinan phenomenon which occurred
as a result of the changes that the Muslim community encountered
following the Prophet's migration to Medina. Certain rules were intro~
duced, at the early stage of the advent of Islam, that were designed
to win over the hearts of the people. An example of this is the number
of daily prayers which was initially fixed at two but was later increased
to five. Similarly, mut ah, or temporary marriage, was initially permit-
ted but was subsequently prohibited when the Prophet migrated to
Medina. These and similar changes were effected in the musiis at a
time when the Muslim community acquired sovereign authority, and
fresh legislation was deemed necessary to regulate its life in the
new environment of Medina. The basic philosophy of maski is thus
generally acknowledged to be a realisation of benefit for the people,
which ensured harmony between the law and the prevailing con-
ditions of society,

Some Hanafi and Mu'tazili scholars have held the view that ijmi’
can abrogate a nuling of the Qur’dn or the Suimeh, The proponents
of this view have claimed that it was due to ijmd that “Umar iba
al-Khattab discontinued the share of the mu’allafah al-gulab in the
zakah. These were persons of influence whose friendship and co-
operation was deemed to be beneficial to Islam, The Qur'an assigned
them a share in zakah (al-Tawbah, 9:60), but this was discontinued
apparently because the mujtahidan of the time reached a unanimous

204 PRINCIPLES OF ISLAMIC JURISPRUDENCE

agreement to that effect. The correct view, however, is that owing
to differences of opinion that are recorded on this matter, no ijma
could be claimed to have materialised.* Besides, the majority of “wlama
have held that ijma’ neither abrogates nor can be abrogated itself and
at any rate ijma® cannot abrogate a nayg of the Que’an or the Sunnah
for a valid ijma’ may never be concluded in contradiction wo the
Qur'an ot the Sunnah in the first place. Al-Amidi elaborates this as
follows: the hukim which the ijma* seeks to repeal might be founded
in a mass, another ijma* or giyds. The first is not possible, for the ijmit
which seeks to abrogate the nasy of Qur’in or Sunnah is either based
on an indication (dalil) or not. If it is not based on any dalil, then it
is likely to be erroneous, and if it is based on a dali! this could either
be a nagy of qiyas. If the basis (sanad) of ijma* is a qiyds, then abroga-
tion is not permissible (as giyas must not violate ijmi); and if the sanad
Of ijma is a nass, then abrogation is by that nass, not by ijmd. Moreover,
a ruling of imi’ cannot be abrogated by the Qur’in or Sunnah simply
because the Qur’in and Sunnah precede ijmi* and the abrogator
(al-nasikl)) must in all cases precede the abrogated (al-mansikh). The
Mu‘tzilf scholars and also the Hanaft scholar “Isa ibn Abin, have, on
the other hand, held that ijma" may abrogate the nagy and give as an
example the Quranic text on the share of mu'allafah al-quidb which
was abrogated by the ijma’ of the Companions. The jumhiir have
replied that this was a case not of abrogation, but of the termination
of a hukm because of the termination of its ‘illah. This is explained
further by the fact that the share of the mu‘allafah al-quinb was discon-
tinued by “Umar ibn al-Khattb on grounds of Sharl‘ah-oriented
policy (al-siydsah al-shariyyah), which is explained in the caliph's
widely quoted phrase that “God has exalted Islam, and it is no longer
in need of their favour,”

According to the general rule, a Qur’anic mays or a mutusttir hadith
cannot be abrogated by a weaker hadith, by {jm or by giyas. For they
are not of equal authority to the nays. This is, in fact, the main argu~
ment in support of the rule, already referred to, that no abrogation
of the 1ass is possible after the demise of the Prophet, for the Qur'in

and the Sunnah ceased to be revealed with his demise. Since nothing
weaker than the Qur'in and Sunnah can abrogate anything in either
of these sources, abrogation, to all intents and purposes, came to an
end with the death of the Prophet. lima’, gis and ijtihad, being
weaker in comparison to the musi, cannot abrogate the rules of
divine revelation."

It is in view of these and similar considerations that the “wlamd

Naskh (Abrogation) 205

have arrived at the general rule that can neither abrogate nor be
abrogated itself. Abrogation in other words is generally not relevant
to ijma’. The preferable view, however, is that ijmd cannot abrogate
the rulings of the Qur’in, the Sunnah or of another ijmd' that is
founded in the Qur’in, Sunnah or giyas, However, a subsequent imi
may abrogate an existing ijmd in consideration of public interest
(maslabah mursalali) or custom (‘urf). This would in theory appear to
be the only situation in which ijma® could operate as an abrogator.’

And finally, since the principal function of giyas is to extend the
rulings of the Qur'an and Sunnah to similar cases, it can never operate
in the opposite direction, namely, to repeal a text of the Qur'in or
Sunnah, Broadly speaking, giyis has no place in the theory of naskh:
giyas cannot be an abrogator, basically because it is weaker than the
nats and ijma and thus cannot abrogate either, Nor can giyds itself be
abrogated, for giyas is normally based on a textual ruling and is bound
to remain valid for as long as the original text remains valid. It is thus
inconceivable that a giyds could be abrogated while the text in which
it is founded remains in force, Furthermore, an established analogy is
not exactly abrogated by a subsequent analogy. If the first analogy is
based on the Qur'in or Swanah, then a conflicting analogy would
presumably be erroneous. Besides, the two analogies can coexist and
be counted as two ijtihdd? opinions without the one necessarily
abrogating the other, for the rule concerning ijtihad is that the
mujtahid deserves a reward for his effort even if his ijtihdd is incorrect
In short, naskh basically applies to binding proofs, and giyas is not one
of them.”

In his Risdlah, Imim Shafi't has maintained the view that naskh is
not a form of annulment (ilgha’); rather, it is a suspension or termi-
nation of one ruling by another. Naskh in this sense is a form of
explanation (bayan) which does not entail a total rejection of the
original ruling,’ Naskh is explanatory in the sense that it tells us of
the termination of a particular ruling, the manner and the time of its
termination, whether the whole of a ruling or only a part of it is
terminated and, of course, the new ruling which is to take its place.
However, the majonty of ‘wlama’ do not accept the view that naskh
isa form of bayan. The fact chat nash terminates and puts an end to
4 ruling differentiates it from baydn, and when a ruling is terminated,
it cannot be explained

‘There may be instances of conflict between two texts which, after
scrutiny, may turn out to be apparent rather than real, and it may be
possible to reconcile them and to eliminate the conflict. One of the

206 PRINCIPLES OF ISLAMIC JURISPRUDENCE

two texts may be general (‘dmm) and the other specific (kehass), in which
case the rules of interpretation and takhsis (specification) must be
applied so as to eliminate the conflict as much as possible. If the two
texts cannot be so reconciled, then the one that is stronger in respect
of authenticity (thubit) is to be preferred. If, for example, there is a
volitary hadith, the latter is weaker

d must therefore give wa The solitary, or ahdd,
hadith may also be abrogated by the mutaudtir, the mashhir or another
had that is clearer in meaning or is supported by a stronger chain of
narration (isndd), But if the two texts happen to be equal on all of
these points, then the prohibitory text is to be given pnority over the
permissive, Furthermore, in all instances of conflict, it is essential to
determine the time factor, If this can be determined, then the later
in time abrogates the earlier. The chronological sequence between
the two rulings can, however, anly be established by means of reliable
reports, not by rational argumentation or analogical reasoning,

‘As a general mule, naskl is not applicable to the "perspicuous’ texts
of the Qur'da and hadith known as mubkamdt. A text of this nature
is often worded in such a way as to preclude the possibility of repeal
There are also certain subjects to which abrogation does not apply
included among these are provisions pertaining to the attributes of
God, belief in the principles of the faith, and the doctrine of tawhid
and the Hereafter, which could not be subjected to abrogation.
Another subject is the Sharf ah of Islam itself, which is the last of the
revealed laws and can never be abrogated in its entirety. The ‘ulama?
are also in agreement that rational matters and moral truths such 3s
the virtue of doing justice or being good to one’s parents, and vices
such as the enormity of telling lies, are not changeable and are there~
fore not open to abrogation, Thus a vice cannot be tumed into a
virtue or a virtue into a vice by the application of naskh, Similarly the
nwsi¢ of the Qur'an and Sunnah that relate the occurrence of certain
events in the past are not open to abrogation. To give an example,
the following Qur’dnic text is not amenable to the application of
naskh: “As for the Thamdd, they were destroyed by a terrible storm,
whereas the ‘Ad were destroyed by a furious and violent wind’
(al-Haggah, 69:5-6).

Ae pe po cay | Sali ale Uly Leta, Slob o,f ly

conflict between the Qur'an and a
to the Quin.

To apply naskh to such reports would imply the attribution of lying
to its source, which cannot be entertained."

Naskh (Abrogation) 207

To summarise the foregoing: no abrogation can take place unless
the following conditions are satisfied. First, that the text itself has not
precluded the possibility of abrogation. An example of this is the
Qur'inic provision conceming persons who are convicted of slan-
derous accusation (gadhf) that they may never be admitted as witnesses
(al-Nar, 24:4). Similarly the hadith which proclaims that ‘jihad shall
remain valid tll the day of resurrection’

AAD ey SI 2b att!

obviously precludes the possibility of abrogating the permanent validity
of jihad," Second, that the subject is open to the possibility of repeal.
Thus the attributes of God and the principles of belief, moral virtues
and rational truths, etc., are not open to abrogation. Third, that the
abrogating text is of a later origin than the abrogated, Fourth, that
the two texts are of equal strength in regard to authenticity (thubit)
and meaning (dalalah). Thus a textual ruling of the Qur'an may be
abrogated either by another Qur'dnic text of similar strength of by a
mutawitir hadith, and, according to the Hanafls, even by a mashhiir
hadith, as the latter is almost as strong as the mutawitir. By the same
token, one mutawidtir hadith may abrogate another. Howev
ing to the preferred (ndjih) view, neither the Qur'in nor the mutawitir
hadith may be abrogated by a solitary hadith. According to Imam
Shifi'l, however, the Sunnah, whether as mutawitir or dhdd, may not
abrogate the Qur'in."® Fifth, that the two texts are genuinely in
conflict and can in no way be reconciled with one another, And
lastly, that the two texts are separate and are not related to one
another in the sense of one being the condition (shart), qualification
(wag) or exception (jstithna’) to the other. For when this is the case,
the issue is likely to be one of specification (takhsiy), of qualification
(taqytd) rather than abrogation."

, accord

I. Types of Naskh

Abrogation may either be explicit (sarih) or implicit (¢imni). In the
case of explicit abrogation, the abrogating text clearly repeals one
ruling and substitutes another in its place. The facts of abrogation,
including the chronological order of the two rulings, the fact that
they are genuinely in conflict, and the narure of each of the two
rulings, and so forth, can be ascertained in the relevant texts. An
example of this is the hadith that states: "I had forbidden you from

208 PRINCIPLES OF ISLAMIC JURISPRUDENCE

cx. Nay, visit them, for they remind you of the

visiting gra
Hereatter

Sis Up oy 39 VO oF SAS
32S

In another hadith the Prophet is reported to have said, ‘I had forbid.

den you from storing away the sacrificial meat because of the large

crowds, You may now store it as you wish.
iI Jor ey teh 5 oe Sh oS
slay 30 YI

The initial order not to store the sacrificial meat during the ‘fd festival
(‘td al-adha) was given in view of the large number of visitors who
attended the festival in Medina, where the Prophet desired that they
should be provided with necessary foodstuffs. The restriction was later
remo}

the text leaves no doubt as to the nature of the two rulings and all
the other relevant facts of abrogation. An example of explicit abro~
gation in the Qur'an is the passage in sOra al-Bagarah (2:142—144)
with regard to the change in the direction of the giblah from Jerusalem
wo the Kabah. The relevant text of the Qur’in as to the direction of
the qiblah before and after the new ruling is clear, and leaves no doubt
about the facts of abrogation and the nature of the change that was
effected thereby.”

In the case of implicit abrogation, the abrogating text does not
clarify all the relevant facts. Instead, we have a situation where the
Lawgiver introduces a ruling which is in conflict with a previous ruling
and the two cannot be reconciled, while it remains somewhat doubt-
ful whether the two rulings present a genuine case for abrogation. An
example of implicit abrogation is the ruling in stira aleBagarah (2:180)
which permitted bequests to one’s parents and relatives. This was subse-
quently abrogated by another text (al-Nisi’, 4:11) which entitled legal
heirs to specific shares in inheritance. Notwithstanding the fact that
the two rulings are not diametrically opposed to one another and
both could be implemented in certain cases,** the majority of

das the circumstances had changed. In both these examples,

have held that the initial ruling that validated bequests to relatives has

Naskh (Abrogation) 209

been abrogated by the rules of inheritance. They have held chat the
Syah of inheritance prescribes specific portions for legal heirs which
can be properly implemented only if they are observed in their
entirety, and that the Quranic scheme of inheritance is precise and
self contained, and any outside interference is likely to upset the
individual shares as well as the overall balance between them. Since
bequest to legal heirs is seen as a principal source of such interference,
it is totally forbidden. This analysis is substantiated by the explicit
ruling of a badith in which the Prophet is reported to have said: ‘God
has assigned a portion to all who are entitled, Hence there shall be
no bequest to legal heirs.”

LDN ay Wa dim Gm (53 JS gael a 0

Implicit abrogation has been sub-divided into two types: total
abrogation (naskh keull) and partial abrogation (naskh juz'f). In the case
of the former, the whole of a particular nass is abrogated by another,
and a new ruling is enacted to replace it. This may be illustrated by
a reference to the two Qur'Inic texts concerning the waiting period
(Ciddah) of widows, which was initially prescribed to be one year but
was subsequently changed to four months and ten days, The two texts
are as follows:

Thote of you who are about to die
wadows a year's maintenance and reudence; but if they leave the residence, you

i lore wldown thon egos fork

Son geal fer ps nya of amen Lagu = 54th

Lele pga dey bel yiT Os shey pS Oh coll
See cle Wee Ob chal 2é JH! I

Those of you wo die und lave widows the ler must chverve a waking period

of four mondhs and 1ee days. when they have fulfilled their term, you ste not
responsible for what they do of themselves (al-Daqarat

cenit pay a Magi Ogres Se Oz cuilly
Se lee WB coal! gal bp ey ah ans
candi 9 ghd

210 PRINCIPLES OF ISLAMIC JURISPRUDENCE

As can be seen, the provision concerning the waiting period of

widows in the first dyah has been totally replaced by the new ruling

in the second. There is no doubt on the point that both of these rulings
ned with the same subject, namely widows. Both

re them to observe a waiting period, whose length varies in

exclusively cone
ayir req

each, and only one must be observed, not both. The two passages are

thus in conflict an
as already not
expound, with complete clarity, all the facts of abrogation and it is
not certain whether they are genuinely in conflict, for the term ‘a year’s

maintenance and residence’ in th

the latter abrogates the former. But this is a case

of an implicit maskh, an thar the two dyat do not

first dyah does not recur in the
her maintenance of residence
an the second dyah. This would, for example, introduce an element of
doubt conceming whether the two dydt are concerned with different
subjects of maintenance and ‘iddah respectively. There is, in other words,
a level of discrepancy which might make it possible to apply each of
the two rulings to different situations. This is not to argue against the
majority view which seems to be the settled law, but merely to explain
why an abrogation of this type has been classified as implicit naskh.

Partial abrogation (naskh juz't) is a form of naskh in which one text
is only partially abrogated by another, while the remaining part
continues to be operative. An example of this is the Qur’inic dyah of
qadhf (slanderous accusation), which has been partially repealed by the
yah of imprecation (i'an), The two texts are as follows:

second. There is, in fact, no reference to ¢3

Those who accue chaste wamen {of adultery} snd then

to being four witnewes
1 prove it shall be flogged wich eighty lashes (aleNOr, 24:4

(Ppl cligs day lish pF teat opy cyl,
fale og
Thove who secue thelr pouies nd have no wimeney, other tue thet owe

words, support their claim, must take four soleme oaths in the mame of God
and tesafy that they are telling the uth (al-Nor, 24:6).

pemll YY elige oh SS Ay ogrl ysl One crilly
dala oh ai} BL cilatge dash patel salgcd

The first yah lays down the general rule that anyone, be it a spouse
of otherwise, who accuses chaste women of zind must produce four

Naskh (Abrogation) 211

wimesses for proof. The second dyah provides that if the accus
happens to be a spouse who cannot provide four witnesses and yet
insists on pursuing the charge of zind, he may take four sole
to take the place of four witnesses. This is to be followed, as the text
continues, by a statement in which the husband invokes the curse of
God upon himself if he tells a lie. The ruling of the first text has thus
been repealed by the second text insofar as it concerns a married
couple.”

It will be noted that the text of the Qur'in has two distinctive
features, namely, the words of the text, and the ruling, or bukm, that
it conveys. Reading and reciting the words of the Qur’in, even if
its ruling is abrogated, still commands spiritual merit. The words are
still regarded as part of the Qur’in and salah can be performed by
reciting them. It is on the basis of this distinction between the words
and the rulings of the Qur’in that naskh has once again been clasified
into three types. The first and the most typical variety of abrogation
is referred to as naskh al-hukm, or naskh in which the ruling alone is
abrogated while the words of the text are retained. All the examples
we have given so Gar of the incidence of naskh in the Qur’dn fall into
this category. Thus the words of the Qur'nic text conceming
bequests to relatives (al-Bagarah, 2:10) and the one concerning the
‘iddah of widows (al-Baqarah, 2:240) are still a part of the Qur’in
despite the fact that they have both been abrogated. We still recite
them as such, but do not apply the law that they convey, The other
two varieties of naskh, respectively referred to as naskh al-tildwah
(sometimes as naskh al-gird’ah), that is abrogation of the words of the
text while the ruling is retained, and naskh al-hukm wa al-rildwah, that
is abrogation of both the words and the ruling — are rather rare and
the examples which we have are not supported by conclusive
evidence. Having said this, however, we might add that, except for
4 minority of Mu'tazilt scholars, the ‘wlama’ are generally in agree-
ment on the occurrence of abrogation in both these forms.* An
example of naskh al-tildwah is the passage which, according to a report
attributed to “Umar ibn al-Khatgib, was a part of the Qur'in,
although the pasage in question docs not appear in the standard
text. However, the ruling conveyed by the passage in question still
represents authoritative law. The reported version of this text
provides: ‘When a married man or 2 married woman commits
ind, their punishment shall be stoning as a retribution ordained by
God."

an oaths

212 PRINCIPLES OF ISLAMIC JURISPRUDENCE

BN oe WSS DA gab 13 Sy

In the event where the words of the text, and the law that they
convey, are both repealed, then the text in question is of little signifi-
According to a report which is attributed to the Prop!
widow, ‘A’ishah, it had been revealed in the Qur'an that ten clear
suckings by a child make marriage unlawful between that child and
others who drank the same woman's milk. Then it was abrogated and
substituted by five suckings and it was then that the Messenger of
God died. The initial ruling which required ten suckings was read
into the text of the Qur'dn.
words in which it was conveyed were also omitted from the text
However since neither of these reports is established by tawitur, they
are not included in the Qur'an. The position now, according to the
majority of ‘wlama’, is that either five clear suckings, or any amount
which reaches the stomach, even if it be one lange sucking, constitutes
the grounds of prohibition.”

According to the majority (jumhar) view, the Qur'an and the Sunnah
may be abrogated by themselves or by ane another. In this sense,
abrogation may be once again classified into the following varieties.
(1) Abrogation of the Qur'an by the Qur'an, which has already been
illustrated. (2) Abrogation of the Sunnah by the Sunnah, This too has
been illustrated by the two hadith which we quoted under the rubric
of explicit abrogation. (3) Abrogation of the Qur’in by Sunnah, An
example of this is the dyah of bequest in sGra al-Bagarah (2:180) which
has been abrogated by the hadith that provides that "there shall be no
bequest to an heir’, It is generally agreed that ‘the Que’in itself docs
not abrogate the dyah of bequest and there remains little doubt that
it has been abrogated by the Surinah’?” (4) Abrogation of the Sunnah
by the Qur'an. An example of this is the initial ruling of the Prophet
which determined the giblah in the direction of Jerusalem. When the
Prophet migrated to Medina, he ordered the believers to pray in the
direction of Jerusalem. This was later repealed by the Qur'in

The ruling was then repealed and the

(al-Bagarah, 2:144) which ordered the Muslims to tum their faces
toward the holy mosque of the Ka’bah.”* The Qur’3n, in other words,
abrogated a practice that was initially authonsed by the Sunnah, On
a similar note, the obligation of fasting on the day of ‘AshGri” was
established by the Sunnah and this was in tum. abrogated by the
Quranic text (al-Bagarah,
month of Ramadan.

83) that commanded fasting during the

Naskit (Abrogation) 213

The main exception to the foregoing classification of nasieh is taken
by Imam Shafi, the majority of the Mu tazilah and Ahmad ibn Hanbal
(according to one of two variant reports), who have validated the first
two types of abrogation, but have overruled the validity of the remain-
ing two. In their view, abrogation of the Qur’in by the Sunnah and
vice vena is not valid.” This is the conclusion al-Shafi'l has drawn
from his interpretation of a number of Qur'Inic dyat where it is
indicated that the Qur'an can only be abrogated by the Qur'an itself.
Thus we read in sOra al-Nabl (16:101): ‘And when We substitute one
yah in place of another dyah, and God knows best what He reveals.”

Sp lel Sly aT OWS aT Ly ily

This text, according to al-Shafi'l, is self-evident on the point that an
Syah of the Qur’in can only be abrogated or replaced by another
Ayah. The fact that the dyah occurs twice in this text provides conchi-
sive evidence that the Qur'in may not be abrogated by the Surah,
This is confirmed by the word na’ti (We bring) in which God refers
to Himself, which must mean that only the Qur'in can abrogate
itself The proper role of the Sunnah is therefore to explain, but not
to abrogate, the Qur'an. In another place, the Qur’in reads: ‘None
of our revelations do We abrogate ar cause to be forgotten unless We
substitute for them something better or similar (al-Bagarah, 2:106),

Glee sh lye pe ob Gas PAT o> Gent

The text in this dyah is once again clear on the point that in the matter
of naskh, the Qur’in refers only to itself. The Qur'in, in other words,
is self-contained in regard to naskh, and this precludes the possibility
of it being abrogated by the Sunnah, Naskh in the Qur'tn, according
to al-Shafi', is a wholly internal phenomenon, and there is no evidence
in the Qur'in to suggest that it can be abrogated by the Sunnah,
Indeed the Qut’3n asks the Prophet to declare that he himself cannot
change any part of the Qur'in. This is the purport of the text in s0ra_
Yonus (10:1§) which provides: ‘Say: it is not for me to change it of
my own accord. | only follow what is revealed to me.”

O) pn tad op abut of JOS &
Beeb

214 PRINCIPLES OF ISLAMIC JURISPRUDENCE

tis thus not within the Prophet's terms of reference to abeogate
the Qur’in on his own initiative, “The Sunnah in principle’, writes
al-Shafi's, ‘follows, substantiates and clarifies the Qur'an; it does not
seek to abrogate the Book of God’. All this, al-Shafi't adds, is rein~
forced in yet another passage in the Que’in where it is stated: ‘God
blots out or confirms what He pleases. With Him is the Mother of
the Book’ (al-Ra‘d, 13:39).

ASI pf ory cotey elite Le abl pat

The reference here is again to nakh and the source in which it
originates is the Mother of the Book, that is, the Qur’n itself The
Sunnah, even the mutawatir Sunnah, may not abrogate the Qur’dn
Al-Shifi'l is equally categorical on the other limb of this theory,
namely that the Qur’tn does not abrogate the Sumah either, Only
the Sunnah can abrogate the Sunnah: mutawitir by mutawatir and alad
by dhad, Mutawitir may abrogate the dhad, but there is some disagree~
ment on whether the disdd can abrogate the mutawitir. According to
the preferred view, which is also held by al-Shafi'l, the dlsad, however,
can abrogate the mutawitir, To illustrate this, al-Shati'l refers two the
incident when the congregation of worshippers at the mosque of
Qubi’ were informed by a single person (kehahar al-withid) of the
change of the direction of the qiblah from Jerusalem to the Ka'bahs
they acted upon it and turned their faces toward the Ka‘bah. The fact
that Jerusalem was the qiblah had been established by continuous, or
mutawitir, Sunnah, but the congregation of Companions accepted the
solitary report as the abrogator of mutawsatir.!*

Al-Shifi'l claborates his doctrine further. If there existed any occa~
sion for the Sunnah to abrogate the Qur’in of vice versa, the Prophet
would be the first to say so, Thus in all cases where such an abroga~
tion is warranted, there is bound to be a Sunnah of the Prophet to
that effect, in which case the matter automatically becomes a part of
the Sunnah, The Sunnah in other words is self-contained, and covers
all possible cases of conflict and abrogation of the Qur'an by the
Sunnah and vice versa. If any Sunnah is meant to be abrogated, the

Prophet himself would do it by virtue of another Sunnah, hence there
is no case for the abrogation of Sunnah by the Qur'an.”

ALShifi‘T considers it necessary for the abrogation of Sunnah
that the Prophet should have informed the people specifically about
it. If the Que'in were to abrogate the Sunnah, while the Prophet has
not indicated such to be the case, then, to give an example, all the

Naskh (Abrogation) 215

varieties of sale that the Prophet had banned prior to the revelation
of the Qur’inic ayah on the legality of sale (al-Baqarah, 2-275) would
be rendered lawful with the revelation of this dyah, Similarly, the
punishment of stoning for zind authorised by the Prophet would be
deemed abrogated by the variant ruling of one hundred lashes in sara
al-Nar (24:2). In the case of theft, too, the Prophet did not punish
anyone for theft below the value of one-quarter of a dinar, not did
he apply the prescribed punishment to the theft of unguarded (ghayr
muhraz) property. These would all be deemed abrogated following
the revelation of the dyah in siira al-Ma'idah (5:38) which prescribes
mutilation of the hand for theft without any qualification whatsoever
If we were to open this process, it would be likely to give rise to
unwarranted claims of conflict and a fear of departure from the
Sunnah *

Notwithstanding the strong case al-Shafi'l has made in support of
his doctrine, the majority opinion, which admits abrogation of the
Qur'in and Sunnah by one another, is preferable as it is based on the
factual evidence of having actually taken place, Al-Ghazill is repre-
sentative of the majority opinion on this when he writes that identity
of source (tajdnus) is not necessary in naskh. The Qur'in and Sunnah
may abrogate one another as they are of the same provenance. While
referring to al-Shifi'l's doctrine, al-Ghazall comments: ‘How can we
sustain this in the face of the evidence that the Qur'an never validated
Jerusalem as the giblah? It was validated by the Sunnah, but its
abrogating text occurs in the Qur'an. Likewise, the fasting of ‘AshOri”
‘was abrogated by the Qur'inic provision concerning the fasting of
Ramadan, while the former was only established by the Sunnah,
Furthermore, the Qur'inic dyah which permitted conjugal intercourse
at night-time in Ramadan (al-Bagarah, 2:178) abrogated the prohi-
bition that the Sunnah had previously imposed on conjugal relations
during Ramadan."

Il. Abrogation, Specification (Takhsis) and Addition
(Taz’id)

Naskh and takhyis resemble one another in that both tend co quality
or specify an original ruling in some way. This is particularly true,
perhaps, of partial naskh, which really amounts to qualification ot
specification rather than repeal, We have already noted al-Shafi'l's
perception of naskh which draws close to the idea of the coexistence
of wo rulings and an explanation of one by the other. A certain

216 PRINCIPLES OF ISLAMIC JURISPRUDENCE

amount of confusion has also arisen between naskh and talehsis due to
conceptual differences between the Hanafls and the majority of
lama? regarding naskh in that they tend to view naskh differently
from one another. These differences of perspective have, however,
been treated more pertinently in our discussion of the ‘dmm and the
khass. In this section, we shall outline the basic differences between
naskh and takhsis without attempting to expound the differences
between the various schools on the subject.

Naskh and takhsis differ from one another in that there is no real
conflict in takhjfs, The two texts, namely the general text and the
specifying text, in effect complement one another. This is not, how-
ever, the case with naskh, in which it is necessary chat the two rulings
are genuinely in conflict and that they could not coexist. Another
is that naskh can occur in respect
of either a general or a specific ruling whereas takhsly can, by definition,
occur in respect of a general ruling only..*

As already stated, naskh is basically confined to the Qur’in and
Sunnah and can only be effected by the explicit rulings of divine
revelation. Takhsfs, on the other hand, can also occur on the grounds
of rationality and circumstantial evidence, Naskh, in other words, can
only occur by shar whereas takhyfs can occur by rationality (‘aq!)
custom (‘wff) and other rational proofs. It would follow from this that
takhsty (i.e. the specification oF qualification of a general text) is
possible by means of speculative evidence such as qiyis and solitary
hadith, But in the case of naskh, a definitive ruling, chat is a gar, can
only be abrogated by another gar ruling. Abrogation, in other
words, is basically not operative with regard to speculative rulings.”

As already stated, in naskh itis essential that the abrogator (al-masikeh)
is later in time than the ruling it seeks to abrogate. There can be no
navksh if this order is reversed, or even where the two rulings are known
to have been simultaneous. But this is not a requirement of akhyis
With regard to takhsfy, the Hanafis maintain that the ‘dm and the
Jehass must in fact be either simultaneous or parallel in time, But accord-
ing to the majority, the ‘dmm and the kis can precede or succeed
‘one another and they need not be in any particular chronological order
This is illustrated in the two dyat regarding gadhf (slanderous
accusation) and [/'an (divorce by mutual imprecation) in siira al-Nor
(24:4 and 6 respectively). ‘The first was revealed in the form of a
general law (‘dmm), but at a time when there was an occasion for its

difference beeween naskh and tak;

enforcement, and the Prophet was considering it when the second
dyah was revealed and specified. This is in accordance with the view

Naskh (Abrogation) 217

of Imam al-Shafi'l, where the general of the first is specified in respect
particularly of a married couple. The Shafi's view here is based
‘on the premise that the specifier of a general ruling need not be
simultaneous of parallel in time with the general; it may be subsequent
in time or parallel, or indeed any time when the need for specification
may arise, regardless as to whether the initial ruling has been
implemented o not.

The Hanafls, on the other hand, maintain that the two rulings
above were separate and the Prophet attempted to implement the first
a8 a general law; and it was then that the second ayah was revealed
and, therefore, partially abrogated the first even if the first had not in
fact been implemented, Based on this analysis, the Hanafls also main-
tain that there is no naskh between the two dy in sra al-Anfal (8:65
and 66 respectively) because they were parallel in time, and there is
no evidence to suggest that there was an interval between them
during which the first might have been implemented independently
of the second. The two dydr here indicate that one hundred steadfast
Muslim warriors will vanquish one thousand unbelievers, according
to the first, and two hundred according to the second, The question
is basically over numbers and also, by implication, whether it might
be permissible for a certain number of Muslim fighters to turn away
from battle if confronted by a much large number of enemy soldiers,

Lastly, naskh does not apply to factual reports of events (akhbi),
whereas takhsts can occur in regard to factual reports. Thus a news
report may be specified or qualified, but cannot be abrogated. The
closest concept to abrogation in regard to reports is that they can be
denied.

Another issue that arises concerning naskh is whether a subsequent
addition (taz’id) to an existing text, which may be at variance with
it, amounts to its abrogation. When new materials are added to an
existing law, the added materials may fall into one of the following
two categories. (1) The addition may be independent of the original
text but relate to the same subject, such as adding a sixth salah to the
existing five. Docs this amount to the abrogation of the original ruling?
‘The majority of ‘ulama” have answered this question in the negative,
holding the view that the new addition does not overrule the existing
law but merely adds a new element to it, (2) The new addition may
not be independent of the original text in that it may be dealing with
something that constitutes an integral part of the original ruling. A
hypothetical example of this would be to add another unit (rak’ ah),
or an additional prostration (sajdah), to one ot more of the existing

218 PRINCIPLES OF ISLAMIC JURISPRUDENCE

obligatory prayers. Another example would be to add to the existing
requirement of releasing a slave in expiation for breaking the fast a
new condition that the slave has to be a Muslim. Does this kind of
addition amount to the abrogation of the existing law? The ‘wlamd
have differed on this, but once again the majority have held the view
that it does not amount to abrogation as it does not seek to overrule
the original text. The Hanafis have held, however, that such an
addition does amount to abrogation. It is on this ground that the
Hanafis have considered the ruling of the ahad hadith on the admis-
sibility of one witness plus a solemn oath by the claimant to be an
abrogation of the Qur'inic text which enacts two witnesses as standard
legal proof (al-Baqarah, 2:282). The abrogation, however, does not
occur, not because the Hanafis consider the new addition to be
immaterial, but because the dhdd hadith cannot repeal the mutawiltir
of the Qur'in.* The majority opinion does not regard this to be a
case for abrogation, for the Qur'inic text on the requirement of
two witnesses does not preclude the posibility of proof by other
methods. Since the original Qur'nic text does not impose an
obligatory command, it leaves open the possibility of recourse to
alternative methods of proof.”

II. The Argument against Naskh

As already stated, the ‘lama are not unanimous about the occurrence
of naskh in the Qur'an. While al-SuyGti has claimed, in his Jtgan ft
im al-Qur'dn, twenty-one instances of navkeh in the Qur’in, Shih
Wall Allah (d. 1762 Ap) has only retained five of al-Suydit’s twenty:
one cases as genuine, stating that all the test can be reconciled.”
Another scholar, Aba Muslim al-Iyfahini (4. 934 AH) has, on the other
hand, denied the incidence of abrogation in the Qur'an altogether."
The majority of ‘lana’ have nevertheless acknowledged the incidence
of naskh in the Qur’in on the authority of the Qur'an itself. This is
the conclusion that the majonty have drawn from the relevant Qur’inic
passages. However, it will be noted that the counter-argument is also
based on the same Qur’nic passages that have been quoted in support
of naskh. The following two dyit need to be quoted again: ‘None of
our revelations do We abrogate nor cause to be forgotten unless We
substitute for them something better or similar’ (al-Baqarah, 2:106).

Uglee f tgee nit ob Lge gt ale oe end

jaskh (Abrogation) 219

Elsewhere we read in siira al-Nabl (16;101): ‘When We substitute
one revelation for another, and God knows best what He reveals."

Spe pled Sly dle OK he Ly 51

To some commentators, the word ‘dyah’ in these passages refers
not to the text of the Qur'an itself, but to previous scriptures includ-
ing the Torah and the Bible, An interpretation of this type would, of
course, render the dyah under discussion irrelevant to the occurrence
of naskit in the Qur'in, AbO Muslim al-Isfahini, a Mu‘tazill scholar
and author of a Qur'an commentary (Jimi al-Ta'wil), has held the
view that all instances of so-called abrogation in the Qur’in are in
effect no more than qualifications and takhyls of one text by another.”
To al-Isfahani, the word “dyah’ in these passages means not a portion
of the Qur'dnic text, but ‘miracle’, To read this meaning in the first
of the two passages quoted above would imply that God empowered
each of His Messengers with miracles that none other possessed; that
God provided each of His Messengers with superior miracles, one
better than the other. That this is the correct meaning of the text is
substantiated, al-Igfah3nt adds, by the subsequent portion of the same
passage (i.e, al-Baqarah, 2:106) which reads: "Do you not know that
God is all-powerful?”

BB age JS ge BN ol ela fT
“Thus this particular attribute of God relates more appropriately in this
context to the subject of miracles than to the abrogation of one dyah
by another. This interpretation finds further support in yet another
portion of the same passage (al-Bagarah, 2:108) which provides in an
address to the Muslim community: ‘Would you want to question
your Prophet as Moses was questioned before?”

Bp er Jes Spey ss ol apn

It is then explained that Moses was questioned by the Bant Isra'tl
regarding his miracles, not the abrogation as such.”” The word ‘Ayah’,
in the second passage (i.e, al-Nabl, 16:101) too means ‘miracle’, For

‘ayal? literally means ‘sign’ and a miracle isa sign. Al-Isfahint further
argues: nasklt is equivalent to ibyal, that is, falsification’ or rendering
something invalid, and ibyal as-such has no place in the Que’an. This
is what we learn from the Qur'dn itself, which reads in stira HS-Mim

PRINCIPLES OF ISLAMIC JURISPRUDENCE

(41:42): "No falsehood can approach it [the Book] from any
direction.

aide op Vy ao cw or Sots ache ¥

In response to this, however, it is said that nasi is not identical with
‘bal, that naskh, for all intents and purpe
a textual ruling, while the words of the text are often retained and
not nullified.

Two other points that al-Isfahani has added to his interpretation
are as follows. Supposing that the passages under consideration do mean
abrogation, even then they do not confirm the actual occurrence of
naskh but rather the possibility of it, and there is a difference between
the two, Lastly, al-Isfahini maintains that all instances of conflict in
the Qur'an are apparent rather than real, and can be reconciled and
removed. This, he adds, is only logical of the Shariah, which is meant
to be for all times; this is just another way of saying that it is not open
to abrogation.

Having explained al-Isfahint's refutation of the theory of nasi, it
remains to be said that, according to the majority of ‘wlama’, the
occurrence of naskh in the Qur'an is proven beyond dispute, It is not
only confirmed by the clear text of the Qur'an but an ijmi’ has been
claimed in its favour. Anyone who opposes it is thus

es, means the suspension of

ng against
the dictates of jjma’,”” In the face of the foregoing disagreements, it
is admittedly difficult to see the existence of a conclusive ijmd on the
point. Bur according to the rules af ijma', once an ijmd is properly
concluded, any subsequent differences of opinion will not invalidate
it. Divergent views such as that of al-Isfhin! seem to have been
treated in this light, and almost totally ignored

The ‘lama’ have, however, given altogether different accounts
of the incidents of naskh in the Qur'in. There are some who have
exaggerated the actual instances of abrogation, and this includes Ibn
Hazm al-Zahirl, Wahbarullah fbn Salamah and Jamal al-Din Iba
al-Jawai (the author of Nawisikh al-Qur'dn) who listed the incidents
of naskh in the Qur'in at 214, 213 and 247 respectively. The
Mu'tazilah included even the slightest variations of the text in their
calculations and held the incidents of naskh to be soo. ‘Abd al-Qadir
al-Baghdadi identified sixty-six such incidents, whereas Jalal al-Din
al-Suy0ti counted them at twenty-one cases; Shih Wall Allah at five
and Aba Muslim al-Isfahini, as already noted, has denied naskh
altogether. There is also a tendency among modem scholars, as 1

Naskh (Abrogation) 221

shall presently elaborate, to reduce these allegations to the minimum
possible.

The main reason behind the exaggerated figures relates to a certain
overlap and confiusion between naskh and takhgis, and a parallel confit-
sion between naskh and termination of the effective cause (izdlat al-
sabab) of a particular hukm, A hukm may no longer be enforceable
because it is no longer needed and the cause for which it was initially
issued is no longer obtainable, and this is a different matter to that of
abrogation, The case of mii'allafat al-quiib in the Qur’anic provision
(al-Tawbah, 9:60) which entitled them to a share in zakah, and which
the caliph ‘Umar discontinued, illustrates our point, Similarly, a large
number of Qur’inic dyit that advocated patience and tolerance
towards the unbelievers were claimed to have been abrogated by the
dyit that authorised fighting the unbelievers. There was in reality no
abrogation and both rulings were valid under different circumstances
The earlier dyit applied at a time when the Muslims were small
in number and weak, and the latter when they acquired military
power,

The other two factors that explain the exaggerated accounts of
naskh relate to the somewhat superficial view that scholars might have
taken over the conflict of evidences, and also a mistaken perception
of the pre-Islamic customs that were replaced by the Sharf'ah of Islam,
The fact that the Qur'an confined the number of divorces to three,
and of polygamy to four, and that it proscribed marriage with one's
step-mother and so forth did not mean that the preceding customary
practices were abrogated, There was in fact no naskh; for naskh is by
definition removal of one shart ruling by another, and there was no
shay { ruling prior to the advent of Islam. One can also find numerous
instances of plausible conflict that are leys than genuine and which
present no occasion for naskh. Al-SuyOti has referred to many such
cases, of which we refer only to the following.

There are two passages in the stra al-Nist both referring to orphans
as follows: ‘If the guardian is affluent, let him claim no remuneration,
but if he is poor, let him have for himself what is just and reasonable”
(al-Nist’, 4:6).

By ply SU Ipid OF oy irre lab OS ony
The above ayah is held by some to have been abrogated by the

following: ‘Those who unjustly eat up the property of orphans, eat
up fire into their own bodies’ (al-Nisi', 4:10).

MIC JURISPRUDENCE

RINCIPLES OF ISL

LU pbs 3 ost, Uy Lal te Shyef OST ceill Of

The relationship between the two dyit is one of exp! in that
the former specifies and explains what is not unjust and the latter
addresses only what is deemed to be

two dyat on charity which simply declare,
have provided for you’ (al-Munifiqan, 63:10)

p55, Ue tal,

‘And they spend out of what We have provided for then’ (al-

ust. On a similar note, the

nd spend of w

Bagarah, 2:3)

O plies pal, ey

were erroneously held to have been abrogated by the command con
ceming the payment of zakah, There is no case for naskh here, simply
because the two passages are concemed with optional charity whereas
zakdh isa legal obligation and a particular kind of charity. The rels
tionship between charity and zakdh may thus be seen as one of the
general to the specific, there being no real occasion for naskh

The arbitrary tone of such allegations becomes vividly clear when
we note the claim that the dyah of the sword (9:36) has, among others,
abrogated such passages as ‘And speak fairly to the people (al-Baqarah,
2:83)

Lae A I

and ‘Is not God the wisest of judges?" (al~Tin, 9$:8).

Sb Sol, dt th
There is obviously no genuine conflict of evidences and the assertion
that abrogation has actually occurred is simply unwarranted.

In his book The Islamic Theory of Intemational Relations: New Directions
for Islamic Methodology and Thought (originally a doctoral dissertation),
Abdul Hamid Abu Sulayman is critical of the classical approach to

kh and calls for a fresh and comprehensive understanding “of the

technique of naskh...on a systematic and conceptual basis, not a legal
istic one'.#” The author is of the view that the classical exposition of

Naskh (Abrogation) 223

naskh is unnecessarily restrictive as it tends to narrow down the ‘rich
Islamic and Qur’dnic experience’, and also indulges, in some instances
at least, in/a measure of exaggeration and excess."

The author maintains that abrogation was pnmarily an historical,
rather than juridical, phenomenon and ought to have been read in
that context. This may be part of the reason why the jurists have
found it difficult to establish the validity of abrogation by the direct
evidence of the Qur'an or Sunnah. The argument is that the facts of
naskh in regard to, for example, the dyah of the sword, as discussed
below, were historical and were largely dictated by the prevailing
pattern of relations between Muslims and non-Muslims at the time.
Now, instead of understanding naskh as a circumstance of history, the

ulama’ curned it into a juridical doctrine of permanent validity. This

classical concept of permanent abrogation is oblivious of the space-time
element which, if taken into account, would have restricted the
application of maskh to those circumstance alone.”

The broad sweep of naskh was, however, taken so far as to invali-
date a major portion of the Qur'an, This is precisely the case with
regard to the dyah of the sword (dyah al-sayf) which reads: ‘And fight
the polytheists all together as they fight you all together, and know
that God is wich those who restrain themselves! (al-Tawbah, 9:36)

WIS Si gly LF WT ES HN | ght y
nich) @ Sib OF Nyalely

Influenced by the prevailing pattem of hostile relations with non-
Muslims, ‘some jurists took an extreme position in interpreting this
ayah’, and claimed that it abrogated all preceding dyal pertaining to
patience, tolerance and the right of others to self-determination.”
Although scholars are not in agreement on the exact number of dyit
that were abrogated as a result, Mustaf Ab0 Zayd has found that the
Ayah of the sword abrogated no less than 140 dyal in the Holy Book."
Jurists who were inclined to stress the aggressive aspect of jihiid could
only do so by applying abrogation to a large number of Quranic aya,
and ‘using abrogation in this manner has’, Abu Sulayman contests,
‘indeed narrowed the Qur’inic experience” and undermined the
egalitanan substance of its teachings. In many passages the Qur'an calls
for peace, compassion and forgiveness, and promotes. set af moral values
such as moderation, humility, patience and tolerance whose scope could
not be said to be confined to relations among Muslims alone.

24 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Muslim jurists of the second century hijnah, as al-Zubaylt
informs us, considered war as the norm, rather than the exception.
in relations with non-Muslims, and they were able to do so partly
because of a certain exaggeration in the use and application of naskh.
The reason behind this attitude was the need, then prevalent, to be
in a state of constant readiness for battle in order to protect Islam.”
Under such political circumstances, it is not difficult to understand
how abrogation was utilised as a means by which to strengthen the
morale of the Muslims in facing their enemies. It is to be noted
further that the position of the classical jurists which characterised war
as the permanent pattern of relationship with non-Muslims, as
al-Zubayll points out, is not binding on anyone, and is not supported
by the balance of evidence in the Qur’in and Sunnah,

Abmad Hasan has reached the conclusion that the classical theory
of naskh cannot go back to the Prophet because we do not find any
information from the Prophet about the existence of abrogated verses
in the Qur'dn, Had any passages been actually repealed, the Prophet
would have definitely drawn attention to it. It is further noted that
the Companions differed among themselves with regard to the abro:
gation of certain verses. To give an example, Ibn “Umar is reported
to have said, concerning the fast of Ramadin, that the dyah that
declared ‘and for those who can de it [with hardship} there is ransom

the feeding of a man in need’ (al-Bagarah, 2:184)

CnSume plab apd 4 pigber oplll dey

» been abrogated by the text ‘And whoever of you is present, let
him fast the month’ (al-Bagarah, 2:185)

snniald gl) pSae dg cad

But Ibn ‘Abbas disagreed and said that the first dyah was still oper=
ative in the case of the elderly who may feed a poor man every day
in liew of each day of fasting, Almost every passage that is held to be
abrogated by one Companion is questioned by another, and this
would seem to confirm that they had not received any instructions
conceming those passages from the Prophet. The fact that some
Quranic passages were subsequently modified and improved did not
necessarily prave that they were abrogated. Since the Qur’3n is meant

to be for all ages and climes, Abmad Hasan tells us, it is inconceiv-
able that the Prophet would have left such an important issue open

Naskh (Abrogation) 225

to disagreement and debate, Then all that remains to be said is that
the historical context of each revelation must be studied in conjunc
tion with the alleged cases of naskh if the Qur’in is to be adequately
undenstood.*

1 conclude this section with two comments, one of which is con-
cemed with a particular variety of naskh, and the other with naskh as
a whole. My specific comment relates to naskh al-hukm wa'ltilawah,
or that variety of naskh in which both the ruling and words of the
Qur'in have been abrogated. To include such a variety in the typology
of naskh is somewhat imaginary and presumptive, and no clear incidence
of it has been recorded. To admit such a hypothetical classification
within the rubric of naskh stretches the limits of speculation and op.
the door to unwarranted assertions over the integrity and complete-
ness of the Qur'in. It is therefore suggested that naskh al-hukm
wa'l-tilawah should be discarded altogether.

My general comment is that the theory of naskh and most of its
cited examples are also open to a variety of doubts, Naskl as a whole
is really too controversial to command the alleged support of the
majonty (jumhit) of Muslim scholars in its favour, To say that there
were instances where some of the rulings of Sunnah, or even of the
Qur'an, were amended due to the change of circumstances is not in
doubt, Bur then to extend the scope of this essentially circumstantial
phenomenon to a juridical doctrine with a theory, definition and
typology of its own is less than warranted. Naskh is basically factual
and has little juridical substance of its own, nor docs it seem to have
a direct bearing on the substance of legal theory. If there is a prov
case of amendment or abrogation of specific rules, we may include it
in our study of the furl’ al-figh. For this is where naskh basically belongs,
and the prominence it has been given in the conventional scheme of
sil al-figh is, pethaps, due for a revision. In all other cases of alleged
and unproven incidents of naskk, the normal course to take would
be to presume the continued validity of the original ruling or text as
under the doctrine of istishab (presumption of continuity) and, filing
that, to refer the matter to jjtihdd. The exaggerated aspects of the
conventional theory of naskh should consequently be discarded and
naskh should be seen as no more than an incidental development in
the early history of the Sharf ah.

226 PRIN c ‘ R
Arid, Dhkiim, 1
r ‘ ‘i Shafi, Risdlah, p. 54% Amid, phim, 1, 136% Zub “yor
oh bid, p. 177; Ghaaall, MM ,
j. SHAMT, Rida, p
Shirl, Miuvafaga, ‘ , ; ° :
Arid, tb yecal order berween the Qur'an and Sunmah in all posit
4K im. ‘in u generally authentic, any doubt of this natun
Arm, tbkln a Ghazal, Mi 81; tee abo Amid, Doki, I r
$ 36. Gh Yost, 71; Bach ‘
(2. Ghul 1. Rye Bad 17. Amid, ikon ah pa
r Asi, Il Waite, p. 2
7 . yo. Asmidt Ibkdm, Hil, 195; Hina, Waite. p
14. Baden, Ud 4c Hi ‘
Aba Dawad, Suman, 1 40. Subbt al-Salib, (Mab onde the vi
wenfy-one instances of maskh in the Qur'an are genuine
16, SHAT, Rial, p. 94; Arnie
Mira, Wajtz, p. 2464; Ku , reconciled.
6. Tabortat, Mish, . i ¥ 41. Abo Zabel r Dentler, “UNM, p
Wid, 5 \ Amici f 42. Subbit al-Salib ri
Another in J H A “ mH
fi Wf du q F they shal ‘ 4s di, p. 155; Badran, Lod, p. 448
6 A
ana if there be on th 1 “
yuh reviewed Uh allo ove Goat has ligh . ‘ syO¢l, alohigdn, 11, 2206 Lynd, Madd, p, rat
be of you one hundred ste . 48. Abu Sulayman, The Ademic Theory, p. Ks
be of you one thousand, they shall Ne tse 49. Ibid, p
1. Shas + a " bid, p. 73,
bbequent to relat he 3 i b
abn 1 asi and 11, soyft

$3. Abu Sulayman

quest to leyal 1e Qur's 4. AbZubayl, Achar absHar, p. 0)
ne the Abu Sulayman, The ldamic Theory, P 7
96. Ab-Zubaylt, Aha alsHanb, p13

Sh (Shon, 11, 14

tw the text of the Qur’s

26. Ammidi, Skim, tf, 4

37, Hitu, Wajts, p, asa, See also Qui, Iilamic juntprden

CHAPTER EIGHT

Iima‘ (Consensus of Opinion)

It must be noted ar the outset that unlike the Qur’3n and Sunnah,
iima’ does not directly partake of divine revelation. As a doctrine and
proof of Shariah, jjma is basically a rational proof. The theory of ijmd
is also clear on the point that it is a binding proof. But it seems that
the very nature of the high status that is accorded to {jm has demanded
that only an absolute and universal consensus would qualify, although
absolute consensus on the rational content of ijmd has often been

difficult to obtain. It is only natural and reasonable to accept imi” as
lity and a valid concept in a relative sense, but factual evidence
falls short of establishing the universality of ijma’, The classical defi
nition and the essential requirements of ijmd’, as laid down by the
ulamd! of usd, are categorical on the point that nothing less than a
universal consensus of the scholars of the Muslim community as a
whole can be regarded as conclusive ijmd’. There is thus no room
whatsoever for disagreement, or ikitilaf, within the concept of ijmi
The theory of ijmd is equally unreceptive to the idea of relativity or
a preponderance of agreement withity its ranks.

The notion of a universal ijma‘ was probably inspired by the
ideal of the political unity of the wnmah, and its unity in faith and
tawhid, rather than total consensus on juridical matters, As evidence
will show, iima* on particular issues, especially on mutters that are
‘open to ijthad, is extremely difficult w prove. Thus the gap between
the theory and practice of imi remains a striking feature of this
doctrine, A universal ijma’ can only be said to exist, as al-Shafi'l
has observed, on the obligatory duties, that is, the five pillars of the
faith, and other such matters on which the Qur’in and the §

nnsh

lima (Consensus of Opinion) 229

are unambiguous and decisive. However, the weakness of such
an observation becomes evident when one is reminded that ijma’
is redundant in the face of a decisive ruling of the Qur'an or the
Sunnah

The Shariah has often been considered “a diversity within unity’
This is true in a general sense, in that there is unity in the essentials
and in the broad outlines of the abkiim. But the same cannot be said
of the detailed rulings of the jurists. It is admittedly true to say, again
in a general sense, that the ikitilaf of individual jurists, or of the
various schools of law, are different manifestations of the same divine
will and may therefore be regarded as an essential unity. But to expect
universal consensus on ijtihdd? matters is totally unrealistic, as many
prominent ‘ulama’ have recognised.

The gap between the theory and practice of {jmi is reflected in the
difficulty thar many jurists have acknowledged to exist in implement-
ing its theoretical requirements. The absolute terms of the classical
definition of ijma have hardly been fulfilled by conclusive factual
evidence that would eliminate all levels of ikhtilaf. lima has often been
claimed for rulings on which only a majority consensus had existed
within or beyond a particular school. The proof and authenticity of
ima’ has, on the other hand, not received the kind of attention that
has been given to the authentication of hadith through a reliable isndd,
The only form of ima that has been generally upheld is that of the
Companions of the Prophet, which is partly due to their special status
and not always due to their participation and consensus. With these
introductory remarks, then, we may begin to examine the meaning
and definition of ima’, and then proceed to discuss some of the issues
we have raised.

I, The Definition and Value of Jjma®

Jima is the verbal noun of the Arabic word ajma'a, which has two
meanings: to determine and to agree upon something. To give an
example of the former, the expression ajma'a fuldn “ald kadhd, means
that “so-and-so decided upon such-and-such". This usage of ajma'a is
found both in the Qur'an and in the hadith.’ The other meaning of
ajma'a is “unanimous agreement’. Hence the phrase ajma'a al-qawm
‘ala kadha means ‘the people reached a unanimous agreement on
such-and-such', The second meaning of ijmi often subsumes the
first, in that whenever there.fsa unanimous agreement on something,
there is also a decision on that matter. Whereas a decision can be

230 PRINCIPLES OF ISLAMIC JURISPRUDENCE

made by one individual or by many, unanimous agreement can only
be reached by a plurality of individuals

Iimat is defined as the unanimous agreement of the mujtahidiin of
the Muslim community of any period following the demise of the
Prophet Mubammad on any matter.’ In this definition, the reference
to the mujtahidin precludes the agreement of laymen from the
purview of ijmd', Similarly, the phrase ‘the mujtahidiin of any period’,
refers to period in which there exists a number of mujtahidiin at the
time an incident occurs, Hence it would be of no account if a
mujtahid or a number of mujtahidiin become available only after the
‘occurrence of an incident. The reference in the definition to ‘any
matter’ implies that jjma* applies to all juridical (shar'f), intellectual
(agit), customary (‘weff) and linguistic (hyghawt) matters.’ Furthermore,
shar'i, in this context is used in contradistinction to hissh, that is,
matters which are perceptible to the senses and fall beyond the scope
of ima’, Some ‘ulama’ have confined ijmd to religious, and others to
shart matters, but the majority of ‘wlamd’ do not restrict ijmd to either.
Although the majority of jurists consider dogmatics (/'rigddiyas) to fall
within the ambit of ijmd, some have expressed the view that ijmi
may not be invoked in support of such subjects as the existence of
God or the truth of the Prophethood of Mubammad. The reason for
this is that such beliefs precede ijmd’ itself. fm’ derives its validity
from the nugis on the infallibility (‘igmah) of the ummah. These musi,
in turn, take for granted the existence of God and the Prophethood
of Muhammad, Now if one attempts to cite ima in support of these
dogmas, this would amount to circumocution. To illustrate this point
further, it may be said that the Qur'ln cannot be proved by the Sunnah,
because the Qur’in precedes the Sunnah, Matters of a practical type
which do not partake of the nature of tasht (legislation) do not
constitute the proper subject of {jmd’. For example, the agreement of
the Companions to send out troops to Syria or to Persia, or their
agreement on setting up certain government departments, etc., did
not constitute ijmd"; for these were practical decisions that were valid
in connection with particular circumstances and did not bind the
succeeding generations of Muslims. Jjmd' on a shart ruling, on the
other hand, has a quality of permanence and its validity is not
confined by a time limit.!

Although the theory refuses to impose any restriction on the subject-
matter of ijmd’, in actual terms the application of ijma’ is bound to be
subject to some reservations. For example, ijma’ must have limited
application in regard to rational and linguistic matters. To say that

Tima (Consensus of Opinion) 231

lying, is evil, or that “hand’ also means ‘power’, need not be supported
by ijma. In actual cerms, jjma’ has always been selective im deter-
mining its own subject-matter. It was perhaps in view of the dynamic
nature of ijma and its infallibility that the ‘ulama’ were persuaded not
to impose any advance reservations on its scope.

It is clear from its definition that ima’ can only occur after the
demise of the Prophet. For during his lifetime, the Prophet alone was
the highest authority on Shariah, hence the agreement or disagree-
ment of others did not affect the overriding authority of the Prophet.
In all probability, im# occurred for the first time among the
Companions in the city of Medina, Following the demise of the
Prophet, the Companions used to consult each other about the
problems they encountered, and their collective agreement was
accepted by the community. After the Companions, this leadership
role passed on to the next generation, the Successors (tabi'dn) and
then to the second generation of Successors. When these latter
differed on a point, they naturally referred to the views and practices
‘of the Companions and the Successors, In this way, a fertile ground
was created for the development of the theory of jimi." The essence
of imi lies in the natural growth of ideas. It begins with the personal
ijtihad of individual jurists and culminates in the universal acceptance
of a particular opinion over a period of time, Differences of opinion
are tolerated until a consensus emerges, and in the process there is
no room for compulsion or the imposition of ideas upon the
community.

Ijma plays a crucial role in the development of Shartah. The exist=
ing body of figh is the product of 3 long process of ijtihad and ijmi
Since {jmit reflects the natural evolution and acceptance of ideas in
the life of the community, the basic notion of jjmit’ can never be
expected to discontinue, The idea that jjmi came to a halt after the
fint three generation following the advent of Islam seems to be a by-
product of the phenomenon known as the closure of the gate of
itihad, Since ijma’ originates in ijtihad, with the closure of the gate of
iitihad, it was expected that ijmi also came to a close. This is,
however, no more than a superficial equation, as in all probability
ijmi continued to play a role in consolidating and unifying the law
after the supposed termination of jihad.”

Ima ensures the correct interpretation of the Qur'an, the faithful
understanding and transmission of the Sunriah, and the legitimate use
of ijtihad, The question as'to whether the law, as contained in the
divine sources, has been properly interpreted is always open to a

PRINCIPLES OF ISLAMIC JURISPRUDENCE

measure of uncertainty and doubt, especially in regard to the deduc~
tion of new rules by way of analogy and jjtihad, Only ijma* can put
an end to doubt, and when it throws its weight behind a ruling, this
becomes decisive and infallible. Jima’ has primarily been regarded as
the instrument of conservatism and of preserving the heritage of the
past. This is obvious enough in the sense that whatever is accepted
by the entire Muslim community as tue and correct must be
accepted as such. However, jimi is also an instrument of tolerance
and of the evolution of ideas in such directions as may reflect the
vision of the scholars in the light of the fresh educational and cultural
achievements of the community. According to one observer, ‘clearly
this principle (i.e. ima] provides Islam with a potential for freedom
of movement and a capacity for evolution, It furnishes a desirable
corrective against the dead letter of personal authority. It has proved
itself, at least in the past, an outstanding factor in the adaptability of
Islam."*

Jima’ enhances the authority of rules that are of speculative origin.
Speculative rules do not carry a binding force, but once an ijmd is
held in their fivour, they become definite and binding. Instances can
be cited, for example, where the Companions have, by their jjmi',
upheld the ruling of a solitary hadith, In such cases, the ruling in ques=
tion is elevated to a binding rule of law. For example, the prohibition
concerning unlawful conjunction, that is simultaneous marriage to the
close relatives of one’s wife, is a definitive ruling which is based on
ijmit’, despise the fact that the basis of this ijma® is a solitary hadith
namely the hadith that prohibits simultaneous mamage to the maternal
or paternal aunt of one’s wife. Similarly, the grandmother is entitled
toa share in inheritance, and this is a qay't ruling of ima that is based
on a solitary hadith. The hadith in question is reported by al-Mughirah
ibn Shu‘bah to the effect that the Prophet assigned to the grand
mother the portion of one-sixth, Ijma’ has also played a role in regard
to hadith that were not equally known to all the mujtahidiin especially
during the period preceding the collection and compilation of hadith.
It was through jjma chat some scholars were informed of the existence

of certain hadith.”

And lastly, jjma‘ represents authority. Once an ima is established
it tends to become an authority in its own right, and its roots in the
primary sources are gradually weakened or even lost. It then becomes
common practice to quote the law without reference to the relevant
sources. It is partly due to the significance of ijma that the incentive
to quote the authority tends to weaken. This is, according to Shah

Jima (Consensus of Opinion) 233

‘Wali Allah, one of the reasons that induced the jurists to recognise
ijma® as the third source of the Sharf ah."

Il. The Essential Requirements (Arkdn) of Ijma'

Whenever an issue arises and attracts the attention of the mujtahidin
of the Muslim community at the time of its incidence, and they reach
4 Unanimous agreement on its ruling, it is implied that the ruling so
agreed upon is the correct and authoritative ruling of the Shart‘ah,
provided that the following conditions are fulfilled,

(1) That there are a number of mujtahidiin available at the time
when the issue is encountered, as consensus can never exist unless
there is a plurality of concurrent opinion. Should there be a situation
where a plurality of mujtahidan could not be obtained, or when there
is only a single mujtahid in the community, no ijma could be expected
to matenalise,

(2) According to the majority of ‘wlama’, unanimiry (inifag) isa
prerequisite of ijma' All the mujtahidin, regardless of their locality,
race, colour and school or following, must reach a consensus on a
juridical opinion at the time an issue arises. The presence of a dissent-
ing view, even on the part of a small minority, precludes the possi-
bility of ijmd’. If, for example, the mujtahidiin of Mecca and Medina,
or those of Iraq, or the mujtahidin of the family of the Prophet, or
the Sunni ‘wlamd’ without the agreement of their Shi'l counterparts
agree upon a ruling, no ijmd’ will materialise. The majority of ‘lama’
mainuain that lay opinion is not taken into account: in every field of
learning, only the opinion of the learned is relevant to ijmd’. Al-
Amidi, however, prefers the minority view, attributed to Ab Bakr
al-Baqillini and others, to the effect that ijmd’ includes the agreement
of both the laymen and the mujiahiddn, the reason being that ‘igmah,
which is the doctrinal basis of ijmd’, is a grace of God bestowed on
the whole of the community. It would therefore be improper to turn
the property of the entire community into a privilege of the
mujtahidiin, The majority view is, however, based on the analysis that
the mujtahidin, in their capacity as the constituents of ijma’, merely
represent the community, and therefore no change is proposed in the
‘onginal locus of ‘igmah,""

(3) The agreement of the mujtahidin must be demonstrated by
their expressed opinion on a particular issue, This may be verbal or
in writing, such as by giving’a fanud in either of these forms, or it may
bbe actual, when, for example, a judge adjudicates the issue in question;

PRINCIPLES OF ISLAMIC JURISPRUDENCE

or it may be that every mujtahid expreses an opinion and, after
gathering their views, they are found to be in agreement. Similarly,
the mujtahidin may give their views collectively when, for example
the mujtahidan of the Muslim world assemble at the time an issue is
encountered and reach a consensus over its ruling.

(4) As a corollary of the second condition above, ijma* consists of
the agreement of all the mujtahidan, and not a mere majority among
them; for so long as a dissenting opinion exists, there is the possibility
thar one side is in error, and no jimi can be envisaged in that situa-
tion, for ijmi is a decisive proof that must be founded on certainty
However, according to Ibn Jarir al-Tabari, Abo Bakr al-Razi, one of
the two views of Ahmad ibn Hanbal and Shih Wall Allsh, ijmat
may be concluded by a majority opinion. But al-Amid! prefers the
majority view on this point, which requires the participation of all
mujtahidan.*

Ima’ must also fulfil three conditions (shuri) which are as follows.
(1) The mujtahidin who participate in jma” must qualify as upright
individuals, and the minimum of this requirement is that they are
admissible as witnesses in the courts of justice. (2) The constituents
of ima are clear of pemicious innovation (bid'ah) and heresy. If the
bid-ah is one that casts doubt on the faith of its advocator and renders
him a non-Muslim, he is disqualified. Even a lesser degree of mis-
guided bid'ah which is actively pursed by inviting others to embrace
it disqualifies the mujtahid from the ranks of im’, This was the reason
why the opposition of the Rawafid Shi‘ah was not given any credit
in the title to leadership of the first two caliphs, nor to that of the
Khirjjites in regard to the imamate of ‘All. (3) The constituents of
ijmit are qualified to carry out ijtihdd, especially when the issue
requires specialised knowledge in particular areas of Sharf‘ah. They
must, in other words, be able to form a considered opinion on the
matter.

Then there are conditions that are the subject of disagreement
among the ‘wlama’, and they include: (1) that only the muyjtahidan
among the Companions qualify. The majority has rejected this; (2)
that the constituents of im belong to the family of the Prophet; (3)
that the participants of ima’ have all passed away; (4) that they are
residents of Medina; (s) that ijma* does not proceed on a matter on
which the earlier ‘ulama’ (al-salaf) were in disagreement. This last
condition, which is held by some Shifi'ls and the Ahi al-Hadith, is
also rejected by the jumhiir."”

In regard to the rules of figh, it is the ijma of the fugaha’ alone that

Jima (Consensus of Opinion) 235

is taken into account." According to the majority view, if a fagth is
known to have actively invited the people to bid'al, he is excluded
from ijma’, otherwise he is included in the ranks of ah! al-ijma’.) The
Hanafis preclude a transgressor (fasig) and one who does not act upon
his doctrine from being among the ohl al-ijma’, whereas the Shifi‘is
and some Malikis maintain that a mere transgression is no disqualifi-
cation." Some fugaha” have held that ijma" is concluded only with the
disappearance of the generation (ingirid al-‘ast), that is, when the
mujtahidiin who took part in it have all passed away. For if any one
of them were known to be alive, there would still be a possibility that
he might change his view, in which case the jm’ would collapse. A
corollary of this rule is that jd is retrospective, in that it only binds
succeeding generations but not its own constituents.””

The majority of jurists, however, maintain that this is not a condi-
tion of imi and that ijmd not only binds the next generation but
also its own participants, as st would only be reasonable to expect that
if jjma did not bind its participants, it should not bind anyone else
cither."* With regard to the tacit ijmif (for which see below), too,
some jurists have held that it is concluded only after the death of its
participants, so that it can be established that none of them have
subsequently expressed an opinion; for when they break their silence
they will no longer be regarded as silent participants, and may even
tum a tacit ijmd’ into an explicit one.

‘The majority of ‘ulama’, nevertheless, refuse to attach any impor-
tance to the “disappearance of the generation’, for in view of the over-
lapping of generations (taddkhul al-a'sa1), it is impossible to distinguish
the end of one generation from the beginning of the next. Thus the
period of the Companions cannot be clearly distinguished from that
of the Successors, nor can any other period be so distinguished from
its preceding o succeeding generations.” However, al-Ghazill has,
to all intents and purposes, resolved this question by stating that ‘for
the formation of imi’, it is enough that agreement should have taken
place, even if only for an instant’,”

When ijma fulfils the foregoing requirements, it becomes binding
(wajib) on everyone. Consequently, the mujtahidan of a subsequent
age are no longer at liberty to exercise fresh ijdhdd on the same issue
for, once it is concluded, ima is not open to amendment of abrogs~
tion (naskh). The rules of naskh are not relevant to ijmd in the sense
that ijma* can neither repeal nor be repealed. This is the majority
view, although some jurists have stated that the constituents of ijmi
themselves are entitled to repeal their own jma’ and to enact another

236 PRINCIPLES OF ISLAMIC JURISPRUDENCE

limit (Consensus of Opinion) 237

one in its place, But once an ijmd is finalised, especially when all of
its constituents have passed away, no further ijmad’ may oncluded
on the same subject. Should there be a second ijma’ on the same

point, it will be of no account.

II, The Proof (Hujjiyyah) of lima

What proof is there that ijmd is a source of law? The ‘wlama” have
sought to justify ima’ on the authority of the Qur’in, the Suna
and reason. We shall presently discuss the dydt and hadith that have

been quoted in support of ijmi'. It should be noted at the outset,

however, that the ‘wma’ have on the whole maintained the impres-
sion that the rextual evidence in support of ijmi’ does not amount
to conclusive proof. Having said this, one might add that both
al-GhazAll and al-Amidi are of the view that when compared to the
Qur'an, the Sunnah provides a stronger argury

nt in favour of ijmi

Tilt ma in the Qur'an

The Qur'an (al-Nisi’, 4:59) is explicit on the requirement of
obedience to God, to His Messenger, and ‘those who are in charge
of affuirs’, the Gli al-amg,” It is also suggested that this dyah lends
support to the infallibility of imi’. According to al-Fakhr al-Rizi,
since God has commanded obedience to the ald al-amr, the judge
ment of the ald al-amr must therefore be immune to error, for God

cannot command obedience to anyone who is able to committing
errons.* The word ‘amr’ in this context is general and thus includes
both secular and religious affairs. The former is discharged by the
political rulers, whereas the latter is discharged by the “ulamd’
According to a commentary attributed to Ibn ‘Abbas, al al-amr
in this dyah refers co ‘wlama’, whereas other commentators have
considered it to be a reference to the umard’, that is, ‘rulers and
commanders’, The zahir of the text includes both, and enjoins
obedience to each in their respective spheres. Hence, when the ihi
al-amr in juridical matters, namely the mujtahidin, reach a consensus
‘on a ruling, it must be obeyed." Further support for this conclusion
can be found elsewhere in sOra al-Nisi (4:83) which once again
confirms the authority of the ili al-amr next to the Prophet himself.**

The one dyah most frequently quoted in support of ima occurs in
sOra al-Nisa’ (4:11), and is as follows:

And anyone who

off from the Messenger after the guidance has become
lear co him and follows 4 way other than that of the believers, We shal Jeave

fbim in the path he has chosen, and land him in Mell, What an evil refxge!

we sty SAR) ond ede op Spe I TY oy
Upnae ieleny pig slay Soir by canst em

The commentators observe that ‘the way of the believers’ in this ayah
refers to their ‘agreement and the way that they have chosen’, in other
words, to their consensus. Adherence to the way of the community
is thus binding, and departure from it is forbidden. Departing from
the believers’ way has been approximated to disobeying the Prophet,
both of which are forbidden. There are several points that the
commentators have emphasised conceming this dyah. However
before elaborating further, a brief discussion of the other Qur'Anic
passages quoted in support of consensus would be useful

The Qur'an is expressive of the dignified status that God has
bestowed on the Muslim community, Thus we read in sOra Al ‘Imrin
(3:110): “You are the best community that has been raised for
mankind. You enjoin right and forbid evil and you believe in God.’

O73 By aly Oy pb Ad om pf al p= a

By Op 8) SU ye
This dyah attests to some of the outstanding merits of the Muslim
community. It is thus argued that had the community been capable
of agreeing on an error, the Qur’in would not have praised it in
such terms. It is further noted that the contents of this dyah give some

indication of the meaning of the phrase ‘the believers’ way’

On the same theme, we read in sOra al-Bagarah (2:143): “Thus We

have made you a middle nation, that you may be witnesses over
mankind.”

CAIN le chip Lyi SS) Uney tal Stam AUIS y

Literally, wasay means ‘middle’, implying justice and balance, qualities
which merit recognition of the agreed decision of the community
and the rectitude of its way! Furthermore, it is by virtue of upright-
ness thar God has bestowed upon the Muslim community the merit

238 PRINCIPLES OF ISLAMIC JURISPRUDENCE

of being a ‘witness over mankind’.*” In yet another reference to the
ummah, the Qur’n proclaims in sGra al-A‘raf (7:181); ‘And of those
We created are a nation who direct others with truth and dispense

justice on its basis,

Oslin ary SEY Opige Hl Lil of y

There are three other dyat that need to be quoted. These are: "Cling
firmly together to God's rope and do not separate (Al ‘imran, 3:103).

LBA Vy eee dil Jt bpenaely

This ayah obviously forbids separation (tafarng). Since opposition to
the ima’ is a form of tafamag, it is therefore prohibited.”* ‘And in
whatever you differ, the judgement remains with God’ (al-Shars,

42:10)

BN Sf aSond ge oy 4b pail ey

which implicitly approves that on which the community is in agree~
ment; and "Then if you dispute aver something, refer it to God and
the Messenger’ (al-Niss’, 4:49).

Spey Bi Soya det cess op

By implication (i.e. divergent implication — mafhilm al-mukhdlafah),
this dyah too upholds the authority of all that is agreed upon by the
community,”

Having quoted all the foregoing dyat, al-Ghazill observes that ‘all
of these are apparent indications {zawithir| none of which amounts to
a clear najg on the subject of ijmd”. Al-Ghazali adds that of all these,
dyah 4:11§ 18 closest to the point. For it renders adherence to the
‘believers’ way’ an obligation. Al-Shafi'l has also quoted it, and has
drawn the conclusion that it provides clear authority for ijmi.
According to him, following a way other than that of the believers
is harim, and following the believers’ way is wiljib.!' Despite this, al~
Ghazili explains that the main theme of this dyai is a waming against
disobedience to the Prophet and hostility against the believers. It
requires the believers to give the Prophet active support and defend
him against enemies. It is not enough for a believer merely to avoid
causing hardship (mushaggah) to the Prophet; he must actively help

Timi (Consensus of Opinion) 239

him and obey all his commands and prohibitions. This is the main
theme of the dyh. The Prophet himself has not given it a spec
interpretation to warrant a departure from its manifest (zhi) mean-
ing. The Prophet, in other words, has not made any reference to ima
in this context. From this analysis, it would appear that al-Ghazali
does not agree with the conclusion al-Shifi'l has drawn from this
dyah.

Jalil al-Din al-Suya!'s interpretation of the same dyah is broadly
in line with what al-Ghazill had to say. There is no indication in al-
Suy04’s Tafifr al-Jaldlayn that this dyah provides an explicit authority
for jjma. ‘Following a path other than that of the believers’, according
to both al-Suydrt and al-Shawkini, means abandoning Islam. Al-
Shawkini adds: “A number of ‘lama’ have drawn the conclusion that
this dyah provides the authority for ijmd’, But this is an unwarranted
conclusion, as following a way other than that of the believers means
unbelief, that is, renouncing Islam in favour of another religion.’ Al
Shawkint further suggests that the occasion of revelation (sha’n
al-nuziil) of this dyak relates to the context of apostasy. It is reported
that one Tu'mah ibn Ubayrag had accused a Jew of a theft which
Tu'mah had committed himself. As a result of the revelation of this
ayah, the Jew was cleared of the charge but Tu'mah. himself
renounced Islam and fled to Mecca.

Mubammad ‘Abduh and his disciple, Rashid Rida, have observed
that the dyah under discussion was revealed conceming the ‘way of
the believers’ during the lifetime of the Prophet, and its application
must be confined to that period. For hostility toward the Prophet
was only posible when he was alive, ‘Abduh further remarks that
to quote this dyah in support of ijmi leads to irrational conclusions,
for it would amount to drawing a parallel between those who are
threatened with the punishment of Hell and a mujtahid who differs
with the opinion of others, A migtahid, even when he takes an
exception to the prevalent opinion, or to the path followed by
other mujtahidan, is still a Muslin, and even merits a reward for
his efforts. “Abduh concludes that the sha'n al-nuziil of this dyah
does not lend support to the conclusion that al-Shafi'l has drawn from
in”

It is further suggested that the threat in the dyah under discussion is
primarily concemed with the first part of the dyah, namely disobeying
the Prophet, and not necessarily with the second, Hence divergence
from the believers’ way is lawful in the absence of opposition to the
Prophet. The validity of this critique is, however, disputed, as the

O PRINCIPLES OF ISLAMIC JURI

ah itsel distinguis!

therefore the threat applies equally
Al-Amidi discusses the Qur'3r

hides that they may give rise to 3 pi

impart positive knowle ec aanaat

then establishing its a on the t

not enough. Spe

deemed to be a sf

111.2 The Sunnah on Ijma

The hadith which is mos

My commu:

Ua de ol ety

The last word in this hadith, namely al-daldlah, is rendered in some

reports as al-khafa’. The jurists have used the two words inter

changeably, but in the classical hadith collections this hadith has beer
recorded with the word « Al-Ghazalt has pointed out that
this hadith is not mutawitir and as such, it is not an absolute authority
like the Qur’in, The Qur'in on the other hand is mutawddir but
contains no nass on ijma’. Having said this, however, al~Ghazilll add

that a number of prominent Companions have reported hadith from
the Prophet, which although different in their wording, are all in
consonance on the theme of the infallibility of the community and

its immunity from error." Leading fi

ures among the Companions
such as “Umar ibn al-Khagib, ‘Abd Allah ibn Mas'dd, Anas ibn
Malik, ‘Abd Allah ibn ‘Umar, AbO Sa‘td al-Khudr, Ab0 Hurayrah
Hudhayfah and others have reported hadith which include the

following:
ad gl Y

ADC le col ead BS}

I beseeched Almighty God nor to bring mty community to the point of agreeing

fon daliluh ancd He yranted me this

Ima (Consensus of Opinion) 241

ty OF separates hirmelf fom ix by she lengsh of «

oh Islan

Ce Ab pt AF LH SU Jed pe

ks oy PLY ak,

in on the right puth. They will be

by the oppostice of opponent
ie o op title SIZ Y
pile oy

1s, dies the death af igno

dale and Oley SOLAN GU oy

And finally, the well-known saying of ‘Abd Allah ibn Mas‘td which
is as follows: “Whatever the Muslims deem to be good is good in the
eyes of God.”

epee ail ie ggb Lem Oya aly Le

Having quoted these (and other) hadith, both al-Ghazall and al-Amidl
observe that their main theme and purport has not been opposed by
the Companions, the Successors and others throughout the ages, and
that everyone has agreed on their broad outline. The ‘wlama’ have

PRINCIPLES OF ISLAMIC JURISPRUDENCE

Tima’ (Consensus of Opinion) 243

continued to rely on them in their exposition of the general and
detailed rules of the Sharf ah, In answer to the point that all these are
fnitive proof, the

solitary (ahad) reports which do not amount to a d
same authors observe that the main purport of these hadith never-
theless conveys positive knowledge, and that the infallibility of the
ummah is sustained by their collective weight,” The point may be
illustrated by saying that we know the courage of ‘All, the generosity
of Hitim, the erudition of al-ShafiT in figh, and the esteem in which
the Prophet held his Companions, despite the absence of mutaw
reports on these subjects. Although the foregoing hadith are all
and could be subjected to doubt if taken individually, their collective
import may, nevertheless, not be denied."

As to the question whether ‘daldlah’ and ‘khapa” in these hadith
especially in the first four) could mean disbelief (luff) and heresy
(bid'ah) with the view that the Prophet might have meant that his
community shall not fall into disbelief, it is observed that khara” is
general and could include kufr but chat daldlah does not, for alilah
only means an error ot erroneous conduct.* If daldlah meant disbelief,
then the abidith under discussion would fail to provide an authority
for the infallibility of the ummah; but if it meant an error only, then
they could provide such authority."

It is further observed that the article ‘ld’ in the hadith under discus
sion could either imply negation (nafy) or prohibition (nahy). If the
latter, it would simply prohibit the people from deviation, and as such
the hadith could not sustain the notion of infallibility for the ummah.**
According to another observer, the manifest (zahir) meaning of the
hadith is that the ummah abstains from a collective agreement on an
error. The hadith, in other words, precludes a general agreement on
an error, but not the error itself. These are some of the doubts which
have been expressed concerning the precise meaning of the hadith
They may or may not be correct, but so long as the hadith is open to
such doubss, it cannot provide a decisive proof (dali! gaf't) for ijmat.**
Muhammad ‘Abduh has observed that the hadith in question does not
speak of ijma’ at all, nor does it sustain the notion of infallibility for
the community. It is an exaggerated claim to read ijmd into this hadith
regardless of whether reference is made to the agreement of the jurists
or to that of the community at large.”

It is further suggested thar some of the foregoing badith simply
encourage fraternity and love among the members of the community,
and, as such, do not envisage the notion of ijmi’ as a source of law.
As for hadith number seven, although al-Ghazali quotes it, it is not

relevant to ijma", as it obviously means that a group of the ummah
shall remain on the right path, not the ummah as a whole. ‘The Shi‘ah
Imamiyyah have quoted this hadith in support of their doctrine of the
imi of abt al-bayt, which refers to the members of the family of the
Prophet.”

The word ‘ummah’ (or jamd ah) in the foregoing hadith means,
according to one view, the overwhelming majority of Muslims, This
view is supported in a number of statements from the Companions.
According to another view, jamfah refers to the scholars of the
community only. The masses, it is argued, look up to the scholars
from whom they acquire knowledge of law and religion, and it is the
latter whose consensus is referred to in the relevant hadith. According
to yet another opinion, ummah (and jamd‘ah) refers only two the
‘Companions, who are the founding fathers of the Muslim community,
According to this interpretation, wmmah and jamd'ah in all the fore~
going hadith refer to the Companions only.*”

And finally, wmmah and jamd‘ah refer to the whole of the Muslim
community and not to a particular section thereof, The grace of “ismah,
according to this view, is endowed on the whole of the community
without any reservation or specification, This is the view of al-Shafi',
who wrote in his Risilak: ‘And we know that the people at large
cannot agree on an error or on what may contradict the Sunnah of
the Prophet.’

Having discussed the hadith relating to jjma, Abmad Hasan observes
that they are inconclusive. All of them emphasise unity and integra~
tion. Some of them are predictive and others circumstantial: “They
may mean ijmd’, or something else.’ Hence the argument that they
provide the authority for ijmd' is ‘definitely subjective’. The same
author elaborates that: (1) there was no idea of ijmd as a doctrine of
jurisprudence in the early period; (a) the jurists could not determine
a definite meaning for ‘wmmah’ or ‘jamd‘ah’; and (3) hadith which
convey a general meaning should not be restricted to a particular
point of view.”

Notwithstanding the doubts and uncertainties in the musily, the
majority of ‘ulama’ have concluded that the consensus of all the
‘mujtahidiin on a particular ruling is a sure indication that the word of
truth has prevailed over their differences; that it is due to the strength
of that truth that they have reached a consensus, This rational argu-
ment in support of ijma’ has been further advanced to the effect chat
consensus upon a shart ruling is bound to be founded on sound
Ujtihad. In exercising ijihad, the mujtahid is normally guided by certain

244 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Tima (Consensus of Opinion) 245

rules and guidelines, ftihdd often consists of an interpretation of the
nass, of of a rational extension of its ruling, Even in the abs
nass, ijthad still observes both the leer and spirit of the sources that
the mujtahid has mastered through his general knowledge. Since
{jtihdd is founded on sound authority in the first place, the unanimous
agreement of all the mujtahidin on a particular ruling indicates that
there is clear authority in the Shariah to sustain their consensus.
the event of this authority being weak or speculative, we can only
expect disagreement (ikehtila/), which would automatically preclude
consensus. Jima’, in other words, accounts for its own authority

ence of a

IV. The Feasibility of [ima

A number of ‘wlama’, including the Mu‘tazill leader Ibrahim al-Nazeim
and some Shi‘l ‘wlama’, have held thar ijmd in the way defined by
the jumhir ‘waa’ is not feasible, To ascertain the consensus of the
lama” on any matter that is not obvious is just as impossible as their
unanimity at any given moment on what they utter and what they
cat.’ It may be possible to ascertain the broad outline of an agree
ment among the mujtahidn on a particular matter, but to say that their
consensus could be ascertained in such a way as to impart positive
knowledge is not feasible, Since the mujtahidan would normally be
located in distant places, cities and continents, access to all of them
and obtaining their views is beyond the bounds of practicality
Difficulties are also encountered in distinguishing a mujtahid from a
non-mujtahid, Since it is the mujtahidn whose consensus constitutes
jimi’, one must be able to identify them with cerainy. Apart from
the absence of clear criteria concerning the attributes of a mujtahid,
there are some among them who have not achieved fame. Even
granting that they could be known and numbered, there is still no
guarantee to ensure that the mujtahid who gives an opinion will not
change it before an jjmd’ is reached. So long as this is possible, no
jimi can be realised, for it is a condition of ijmiF that all the mujtahidian
be simultaneously in agreement.” It is mainly due to these reasons
that al-Shifi'l confines the occurrence of ijmi to the obligatory duties
alone, as he considers that, on matters ather than these, ima’ was not
4 realistic proposition.”

It as due partly to their concem over the feasibility of ima’ that
according to the Zahiris and Imam Abmad ibn Hanbal ijmi’ refers to
the consensus of the Companions alone. This is also the view of the
Kharijites, albeit for them ijmi is a proof if concluded before the split

and fiinah that followed the murder of the Caliph Uthman. Imam
Malik, on the other hand, confines imi’ tw the people of Medina,
and the Shi‘3h imamiyyah recognise only the agreement of the
members of the Prophet's family (ah! al-bayt), In Shi'i jurisprudence,
ijma* is inextricably linked with the Sunnah, for the agreement of the
hi al-bayt (chat is, their recognised imams), automatically becomes an
integral part of the Sunnah, ‘In the ShY'ite view", as Mutahhari explains,
“consensus goes back to the Sunnah of the Prophet...Consensus is not
genuinely binding in its own right, rather it is binding inasmuch as
it is a means of discovering the Sunnah.’ If there is any recognition
of ijma in the Shi'l doctrine, it is not because of the consensus as such
but because it comprises, as indeed it must, the ruling of the infallible
Jmam, What the Imam rules is a proof in its own right independently
of ima’, for he is the head and the leader of the ummah. No ijma can
materialise in the absence of the Imam. In support of their argument
that {ja is confined to the al alsbayt, the Shs ‘ulama’ have referred
to the Qur'an (al-Abzib 33:33): "God wishes to cleanse you, the
people of the house [of the Prophet}, of impurities."

et fal net Se ad i aes

The Shi't doctrine also relies on the hadith in. which the Prophet is
reported to have said, ‘I am leaving among you two weighty things
which, if you hold by them, you will not go astray: The Book of
God and my family.’

7 ne it -
glia gS Lah SOAS OP clit Sd 1
ore AS
The reference in this hadith, according to its Shf'l interpreters, is to ‘Ali,
Fitima, Hasan and Husayn. The Sunnis have maintained, however,
that the dyah in sOra al-Abzib was revealed regarding the wives of
the Prophet and that the context in which it was revealed is different,
Similarly, while quoting the foregoing Hadith, al-Amidi observes:
"Doubtless the ahl al-bayt enjoy a dignified status, but dignity and
descent are not necessarily the criteria of one’s ability to carry out
ijtihad.”
‘There is yet another argument to suggest that ijmd is neither

possible nor, in fact, necesary. Since {imi is founded on jjtihid, the
mujtahid must rely on an indication (dalif) in the sources which is

246 PRINCIPLES OF ISLAMIC JURISPRUDENCE

cither decisive (gaf‘f) or speculative (zann/). If the former is the case
the community is bound to know of it, for a decisive indication in
the nusiy could not remain hidden from the entire community
Hence there would be no need for jjmi to substantiate the nayy or to
make it known to the people. Furthermore, when there is gaf'f indi-
cation, then that itself is the authority, in which case {jmd' would be
redundant. Ima’, in other words, can add nothing to the authority
of a decisive mass. But if the indication in the mags happens to be
speculative, then once again there will be no case for ima’: a specu-
lative indication can only give rise to ikhtilaf, not ijmit

According to a report, ‘Abd Allah ibn Abmad ibn Hanbal quoted
his father to have said: “It is no more than a lie for any man to claim
the existence of imi. Whoever claims ijmd is telling a lie." The jum
lama", however, maintain that ijmd is possible and has occurred in
the past, adding that those who deny it are only casting doubt on the
possibility of something that has occurred, Note, for example, the
ijma’ of the Companions on the exclusion of the son’s son from
inheritance, when there is a son; and their ijmi on the rule that land
in the conquered territories may not be distributed to the conqueror;
or their ruling that half-brothers are counted as full brothers in the
absence of the latter,” This last rule is based on a hadith in which the
Prophet counted them both as brothers without distinguishing one
from the other.” The {jmd® that is recorded on these issues became
standard practice during the period of the first four caliphs, who often
consulted the Companions and announced their collective decisions
in public."

‘Abd al-Wahhab Khalaf is of the view that ijmi’ in accordance
with its classical definition is not feasible in modem times. Khallif adds
that it is unlikely that ijmd could be effectively utilised if it is left to
Muslim individuals and communities without there being 2 measure
of government intervention. But jjmi’ could be feasible if it were wo
be facilitated by the ruling authorities, The government in every
Muslim country could, for example, specify certain conditions for
attainment to the rank of mujtahid, and make this contingent upon
obtaining a recognised certificate. This would enable every govern-
ment to identify the mujtahidan and to verify their views when the
occasion so required, When the views of all the mujtahidan through-
out the Islamic lands concur upon a ruling concerning an issue, this
becomes ijmd’, and the ruling so arrived at becomes a binding hukm
of the Shari‘alt upon all the Muslims of the world."

‘The question is once again asked whether the classical definition

Ijma* (Consensus of Opinion) 247

of ijmi has ever been fulfilled at any period following the demise of
the Prophet, Khallif answers this question in the negative, although
some ‘wlama’ maintain that the imi of the Companions did fulfil
these requirements. Khallif observes that anyone who scrutinises events
during the period of the Companions will note that their ijmi
consisted of the agreement of the leamed among them who were
present at the time when an issue was deliberated, and the ruling that
followed was a collective decision of the siiird. When the Caliph Abo
Bakr could not find the necessary guidance for settling a dispute in the
Qur’in or the Sunnah, he would convene the community leaders for
consultation, and if they agreed on an opinion, he would act upon it
The community leaders so convened did not include everyone; many
were, in fact, on duty in Mecca, Syria, the Yemen, etc, There is
nothing in the reports to suggest that Abd Bakr postponed the settle
ment of disputes until a time when all the mujtahidan of the age in
different cities reached an agreement. He would instead act on the
collective decision of those who were present. The practice of ‘Umar
ibn al-Khatt3b corresponded with that of his predecessor, and this is
what the fiugahd’ have referred to as ijmd. This form of ifmd® was only
practised during the period of the Companions, and intermittently
under the Umayyads in al-Andalus when in the second Islamic
century they set up a council of ‘ulamd’ for consultation in legislative
affairs (tashr). References are found, in the works of some ‘ulama’
of al-Andalus, to the effect that so-and-so was a ‘leamed member’ of
the council

With the exception of these periods in the history of Isham, no
collective ijmd is known to have taken place on any juridical matter
The mujtahidin were engaged in their juridical activities as individuals,
whose views cither agreed or disagreed with those of the other
mujtahidiin. The most that a particular mujtahid was able to say on any
particular matter was that "no disagreement is known to exist on the
‘nukem of this or that incident’.

Zaki al-Din Sha'bin and Shaykh al-Khudarl addrewed some of the
issues regarding ima’ and observed the following, With regard to the
difficulty in identifying the mujtahidin, i is stared that the era of the
Companions can be divided into two periods, that is the period of
the first two caliphs (‘asr al-shaykhayn) and that of the other two
caliphs, ‘Uthmin and ‘Ali. The number of mujtahidin in the first
period was relatively small and could be easily identified, but ijma*
became difficult during the second period as the mujtahidan among
the Companions began to reside in distant places, and matters were

248 PRINCIPLES OF ISLAMIG JURISPRUDENCE

further complicated as a result of political controversies and dissen-
sion that became prevalent, Jjmd' became difficult in this period and
yet remained feasible in principle and did take place.

As for the point that the underlying basis (sanad) of ijmat is either
d ally redundant in both
cases, Sha'bin observes that this is not s0. limi still serves a purpose,
in the former situation, by providing reassurance and preventing
disagreement for, after all, the ruling of the underlying sanad may not
be well-known to everyone. Note, for example, that “Umar ibn al-
Khaytab was cither unaware ot oblivious of the Qur’anic ruling an
dower (mahr) wh ber of the audience where he
spoke drew his attention to the relevant dyah on the subject. And
secondly, when the sanad of ijmd is speculative, such as a ruling of qiyais
or the dhad hadith, ijma’ is still possible and serves an eminently useful
purpose in elevating the speculative evidence to a definitive ruling of
the Shanah. Many examples can be given of dhdd hadith that have
been supported by consensus and the ruling therein consequently
became definitive.”

itive or speculative, and that jjmd is bi

Aa woman me

Types of Ima
From the viewpoint of the manner of its occurrence, jjmif is divided
into two types: explicit jjma (al-ijmut al-sarih), in which every mujtalid
expresses his opinion either verbally or by an action; and tacit ijmd’
(al-ijma al-sukatt), whereby some of the myjtahidin of a particular age
give an expressed opinion conceming an incident while the rest
remain silent.

According to the jumhir ‘ulama’, explicit ijmif is definitive and
binding; it is unlawful to violate it and once properly concluded,
there remains no room for disagreement and ijtihad, Explicit nu can
either be verbal (qawif) or actual (f'lf). In the former, the participants
of ijma’ declare their views clearly, either verbally or in writing, after
deliberation, and reach a consensus on a ruling, In the case of actual
Uma’, the mujtahidin show their consensus in their affirmative action
or abandonment of something. Verbal ijma’ is generally considered
to be stronger than actual ijmi’, This is because action can cither
imply certainty or mere probability, which may accordingly down-
grade an ijmi from a binding ijma' to one that is merely recom-
mended. The Mu‘tazili brahim al-Nagzdm and some Khirijities and
Shi'i have held that ijma‘, whether explicit or otherwise, is not a

proof. Tacit ijmd in particular is a presumptive ijma which only

Ijmi* (Consensus of Opinion) 249

creates a probability (zann) but does not preclude the possibility of
fresh ijtihdd on the same issue. Since tacit ijma does not imply the
definite agreement of all its participants, the ‘ulama” have differed on
its authority as a proof. The majority of ‘wlama’, including al-Shafi',
Ab® Bakr al-Bagillani, and some Hanafis such as ‘Isa ibn Abin and
the Malikis have held thar it is not a proof and that it does not amount
to more than the view of some individual mujtalidiin. But the Hanatis
and Imam Abmad ibn Hanbal have considered tacit ijmd to be a
proof, provided it is established that the mujtahid who has remained
silent had known of the opinion of other mujtahidan but then, having
had ample time to investigate and to express an opinion, still chose
to remain silent. If it is not known that the silence was due to fear or
tagiyyah (hiding one’s true opinion), or wariness of inviting disfavour
and ridicule, then the silence of a myjtahid on an occasion where he
ought to express an opinion when there was nothing to stop him
from doing so, would be considered tantamount to agreeing with the
existing opinion.”

The proponents of tacit ima’ have further pointed out that explicit
agreement or open speech by all the mujtahidiin concerning an issue
is neither customary nor posible. In every age, i is the usual practice
that the leading ‘ulamd” give an opinion which is often accepted by
others. Suppose that the entire ummah gathered in one place and
shouted all at once saying that, "we agree on such-and-such’. Even if
this were posible, it would still not impart positive knowledge, For
some of them might have remained silent due to fear, uncertainty or
tagiyyah.*

Further, the Hanafls draw a distinction between the ‘concession’
(rukhsah) and ‘strict rule’ (‘azimah), and consider tacit (jmi to be valid
only with regard to the former. In order to establish a strict rule, ijma
must be definitely stated or expressed by an act. The Hanafis are alone
in validating tacit ima’. The Zahiris refuse it altogether, while some
Shafi's like al-Juwayni, al-Ghazall and al-Amidt allow it with certain
reservations. ‘It is ima", al-Ghazalt tells us, ‘provided that the tacit
agreement is accompanied by indications of approval on the part of
those who are silent."*” As already indicated, in order to qualify as
valid proof, tacit ima* must fulfil the following six conditions: 1) the
mujtahid knows the issue under deliberation; 2) sufficient time is given
for investigation; 3) the issue is an ijtihdd issue; 4) the issue arose prior
to the establishment of the madhahib, for otherwise the silence of @
mujtakid may not necessarily imply his agreement but may be in
deference to the position of the madhhab he follows; §) that silence is

250 PRINCIPLES OF ISLAMIC JURISPRUDENCE

not due to any fear or favour of the ruling authonities; and 6) thar
silence is not a definitive sign of either agreement or disagreement,
as the former will fall under explicit ijmi’, and the latter will fail to
qualify at all,"*

The majority opinion on this matter is considered to be preferable,
For the silence of a mujtahid could be due to a variety of factors, and
it would be arbitrary to lump them all together and say that silence
definitely indicates consent. But despite the controversy it has aroused,
tacit ijmd' is by no means an exceptional case. On the contrary, it is
suggested that most of what is known by the name of ima’ falls under

this category."

From the viewpoint of authenticity and proof, jjmd' is once again
divided into two types: acquired ijmd (al-ijmi al-muhassal) and trans
mitted ijmat (al-djma al-mangil). The former is known to the mujtahid
through direct participation and there remains no question about
its proof. Transmitted jjmd is, on the other hand, known through
narration and reporting, which is either mutawitir or ahad, According
to the jumhar, tawiitur is not a prerequisite of all jjmd?. When ijmat is
received through mutawdtir reports, it is definitive and binding, but
ijmat that is transmitted by way of solitary reports is also acceptable,
albeit it only amounts to a probability; it is, in other words, a zannt
ima and compliance with it is not obligatory. Further details on this
classification of ijmi’ appear in our discussion of the transmission of
ijma’ below

The next topic that needs to be taken up in this context is the
‘Medinan consensus’ of jjmi ah! al-Madinah, According to the Maliki
lama’, since Medina was the centre of Islamic teaching, the ‘abode
of hijrah’ (dar al-hijeah) and the place where most of the Companions
resided, the consensus of its people is bound to command high
authority. Although the majority of ‘waa’ have held that the Medinan
{ima is not a proof on its own, Imam Malik held that it is. There is
some disagreement among the disciples of Malik as to the interpre~
ution of the views of their Imam, Some of these disciples have
‘observed that Imam Malik had only meant that the ijmd of the people
of Medina is a proof ‘from the viewpoint of narration and factual
reporting’ (min jihah al-nagl wa'l-riwayah) as they were closest to the
sources of the Shari'ah. Other Maliki jurists have held that Malik only
meant the Medinan ijmd’ to be preferable but not exclusive. There
are still others who say that Malik had in mind the ijma of the
Companions alone.

The Medinan practice may consist of their consensus on the

[imi (Consensus of Opinion) 251

narration of the rules of Shariah from the Prophet that are based on
his sayings, acts, and tacit approvals. The sayings of the Prophet are
the hadith which might have also been verified by Medinan practice
As for the acts of the Prophet, the Medinan consensus has it, for
example, that the Prophet used to perform. sali al-'Td in congrega-
tion; that he gave sermons from the pulpit facing the people with his
back toward the giblah. The Prophet's acts might at times have con-
sisted of abandonment of something such as the Medinan consensus
about the fact that there was no adhin and no igdmah for the ‘Td
prayer; that unlike the adhan, the igdmah did not involve duplication
(tathriiyah); and that the martyrs of Ubud were not given a ceremonial
bathing, nor did the Prophet perform any funcral prayers over them;
and the fact also that the Prophet did not impose zakith on vegetables.”
The proponents of the Medinan ijmd* have sought to substantiate
their views with hadith which include the following: ‘Medina is
sacred, and throws out its dross as fire casts out the dross of metal’,

AE Lae pS pits LAS pt gl Ack Ayal

and ‘Islam will cling to Medina as 2 serpent clings to its hole.’

Aap Sf att jib LS tall J} sb OLY! o}

The majority of jurists, however, maintain that these hadith merely
speak of the dignity of Medina and its people. Even if the hadith are
taken to rule out the presence of impurity in Medina, they do not
mean that the rest of the ummah is impure, and even less that the
Medinan jjmd' alone is authoritative. Had the sacred character of a
place been a valid criterion, then one might say that the consensus of
the people of Mecca would command even greater authority, as
Mecca is the most virtuous of cities (a/dal al-bildd) according to the
nass of the Qur'in. Furthermore, knowledge and competence in
ijtihitd are not confined to any particular place. This is the purport of
the hadith in which the Prophet said: ‘My Companions are like stars.
Whomsoever of them that you follow will guide you to the right

path.

peteal patsl pals ppl gla!
This hadith pays no attention whatsoever to the place where a
Companion might have resided.” To this analysis, Ibn Hazm adds

2§2 PRINCIPLES OF ISLAMIC JURISPRUDENCE

the point that there were, 4 earn from the Qur’3n, profligates
and transgressors (fiussdq wa’l-muidfiqin) in Medina just like other
cities, The Companions were knowledgeable in the teachings of the
Prophet wherever they were, within or outside Medina, and staying
in Medina by itself did not necessarily enhance their standing in
or the ability to carry out ijtifutd.”*

respect of knowledge

VI. The Basis (Sanad) of Ijma

The sanad of ijma* is defined as the shart evidence on which the
mujtahidin have relied as basis of their consensual ruling, Ijma* needs
to have a sanad, for without a sanad, it is likely to indulge in ra’y
without a grounding in the nusilj. According to the majority of
lama’, ijmi must be founded in a textual authority or in ijtihdd. Al-
Amid! points out that it is unlikely that the ummah might reach
unanimity on something that has no foundation in the sources.” ‘The
lama’ are in agreement that ijmi may be based on the Qur'in or
the Sunnah, An example of ijm' based on the Qur'an is the ijmd* on
the prohibition of marriage with one’s grandmother, which is, in
turn, based on the ayah “forbidden to you are your mothers
[wmmahdtukum|" (al-Nisi’, 4:23),

Sel Se cap

An example of ijma’ based on Sunnah is the assignment of the share
of one-sixth in inheritance for the grandmother, a ruling which is
founded on an dhdd hadith to the same effect. There is, however,
disagreement as to whether ijma' can be based on a ruling in the
secondary proofs such as qiyis or maylaah,

There are three views on this point, the first of which is chat ijmi
may not be founded on giyis, for the simple reason that qiyis itself is
subject to a variety of doubts, Since the authority of giyds as a proof
is not a subject on which the ‘wlami" are in agreement, how, then,
could ima be founded on it? It is further noted that the Companions
did not reach a consensus on anything without the authority of the
Qur'an or the Sunnah, In all cases in which the Companions are
known to have reached a consensus, at the root of it there has been
some authority in the primary sources.”*

The second view is that giyds in all of its varieties may form the
basis of consensus, for giyds itself consists of an analogy to the nasy
Relying on qiyis is therefore equivalent to relying on the nass, and

Timi (Consensus of Opinion) 253

when ijma is based on a giyds, it relics not on the personal views of
the mujtahidin but on the mass of the Sharfah.

The third view on this subject is chat when the effective cause
(Cilla) of qiyds is clearly stated in the nass, or when the ‘illah is indis-
putably obvious, then giyds may validly form the basis of ijma’. But
when the ‘illah of qiyds is hidden and no clear indication of it can be
found in the nusiis, then i¢ cannot form a sound foundation for ima’,
Ab0 Zahrah considers this to be a sound opinion: when the ‘illah of
qiyas is indicated in the musts, reliance on qiyas is tantamount to rely-
ing on the nayy itself.” Instances could be cited of ijmi that is founded
upon analogy. To give an example, a father is entitled to guardian-
ship over the person and property of his minor child. By ijmd’ this
right is also established for the grandfather regarding his minor grand-
child. This ruling of ijma’ is founded upon an analogy between the
father and grandfather. A similar example is given regarding the
assignment of punishment for wine-drinking (shurb). This penalty is
fixed at eighty lashes, and an ijmi’ has been claimed in its support.
When the Companions were deliberating the issue, ‘Ali ibn Abi Talib
drew an analogy between shurb and slanderous accusation (qadhy).
Since shurb can lead to qadhf, the prescribed penalty for the latter was,
by analogy, assigned to the former. The alleged ima’ on this point
has, however, been disputed in view of the fact chat ‘Umar ibn al-
Khatyab determined the hadd of shurb at forty lashes, a position which
has been adopted by Abmad ibn Hanbal. To claim an ijma* on this
point is therefore unwarranted.”

Ima’ may also be founded on maslahah and many examples of
this can be found in the precedent of the Companions. One of these
was the collection of the Qur'an in a single volume, which ‘Umar
ibn al-Khagrib is said to have recommended to Abd Bakr on the basis
specifically of public good and maglahah, Another example was the
decision not to distribute the land of Iraq among the conqueror,
‘Abd al-Rabmin ibn ‘Awf and ‘Ammir ibn Yasir were for the distri-
bution, but ‘Umar, ‘Uthmin, “Ali and Mu'adh were against it, The
latter view prevailed and became ijmd. And then we note that the
second call (adhan) for the Friday prayers was introduced on grounds
of maslabah, There used to be only one adhin for Prday prayers
during the period of AbO Bakr and ‘Umur, but later, when Medina
expanded, a second adhan was introduced in order to publicise the
occasion. Furthermore, Imam Malik and Imam Aba Hanifah gave
‘fatiwi on the permissibility of giving 2akih to the descendants of
Band Hashim from the clan of the Prophet after the change in the

254 PRINCIPLES OF ISLAMIC JURISPRUDENCE

position of the Bayt al-Mal. We also note the fanwd by all the lead~
ing imams that the testimony of close relatives for one another, which
was valid during the time of the Companions, was no longer to be
admissible on the grounds of maslabah

It is generally assumed that jjmd cannot materialise on a ruling
without there being some evidence on which it might be founded,
even if the evidence in question is not cited in support. When the
subsequent generations of ‘ulami” refer to a ruling of ijmi, they
discuss and ascertain its existence and authenticity, but not its under-
lying evidence, for if we were to refer to the basic evidence of iim,
we would give credit to that evidence, not to ijmi as a proof in its

own right.”

VIL. The Transmission of Ima’

As already noted, from the viewpoint of the reliability of its trans
mission, jjmi’ is divided into ywo types: ‘acquired’ (mubassal) and
‘transmitted’ (mangii). The first is concluded with the direct partici-
pation of the mujtahid without the mediation of reporters or trans~
mitters. The mujtahid thus gains direct knowledge of the opinions of
other mujtahidin when they all reach a consensus on a ruling. But
transmitted ijmd’ is established by means of reports which may either
be solitary (ahdd) or conclusive (mutauitir), In the case of transmis
sion by tawttur there is no problem of proof, but there is disagree~
ment regarding imi’ that is transmitted by way of solitary reports,
We should note, however, that the Sunnah is supported by isndd and
the kind of information that the ‘wlama” have compiled conceming
the Sunnah has not been attempted with regard to ijmi?. [tis therefore
difficult to distinguish the definitive ijmut from that which is based
on probability alone.” Al-Ghazall points out that a solitary report is
not sufficient to prove ijmi, although some fugaha’ have held other-
wise. The reason is that ijmd° is a decisive proof whereas an dhad
report amounts to no more than speculative evidence; thus, it cannot
establish jjmit."

AL-Amidi explains that a number of the ‘wlama’ of the Shafi’,
Hanafi and Hanbali schools validate the proof of {imi by means of
solitary reports, whereas another group of Hanafl and Shifi‘l ‘wlama”

do not, All have nevertheless agreed that anything that is proved
by means of a solitary report is speculative of proof (thubiit) even if
definitive in respect of content (matn),"'

Proof by means of fawiitur can only be claimed for the ijma’ of the

lima (Consensus of Opinion) 255

Companions; no other ijma" is known to have been transmitted by
tawittur. This is the main reason why the fugahd’ have differed in their
views concerning any ijmi other than that of the Companions. A
large number of the ‘ulama’ of usiil have maintained that transmission
through solitary reports amounts to speculative evidence only. When
ijma ts based on such evidence, it loses its value and the hukm for
which ijma is claimed must be referred back to the source from
which it was derived in the first place."

VIII, Reform Proposals

The moder critics of ijmi" consider that ijma according to its
classical definition fails to relate to the search for solutions to the
problems of the community in modem times. Ijmi is hence retro-
spective and too slow a process to accommodate the problems of social
change. These and other considerations conceming the relevance
of ijma to social realities have prompted a response from modem
scholars. We have already discussed the view of “Abd al-Wahhab
Khallif in regard to the feasibility of imi. Khallaf, however, was not
the fint to criticise ijma"

An early critique of ijmut was advanced by Shih Wali Allsh Dihlawt
(d. 1176/1762), who tied to bring ijma’ closer to reality and came
‘out in support of ‘relativity’ in the concept of ijmd’. Diblawt aver-
ruled the notion of universal consensus in favour of relative imi
Dihlawt is also critical of the interpretation that is given to the hadith
concerning ijmd. He argues that the hadith, “My community shall
never agree upon an error’ did not envisage ijmd at all. Hence the
correct meaning of this hadith should be determined in the light of
another hadith which states that: “A section of my community will
continue ¢o remain on the right path’. Jima’ in other words does not
mean universal agreement but only the consensus of a limited number
of mujtahidin. With regard to the other hadith that are quoted in
support of ima’, Dihlaw! maintains that the ewo principal aims of
these hadith are the political unity of the ummah, and the integrity of
the Shari'ah. The same author maintains that ijma’ can be justified on
the basis of all such hadith that protect the unity and integrity of the
community. But he adds that imi’ was never meant to consist of the
universal agreement of every member of the community (or of every
learned member of the community for that matter), as this is plainly
impossible to achieve, It has-neither happened in the past nor could
it conceivably happen in the future. Jimi, according to Shih Walt

256 PRINCIPLES OP ISLAMIC JURISPRUDENCE

Allah, is the consensus of the ‘wham’ and men of authority in different
towns and localities. In this sense, jjmi can be held anywhere at any
time. The ijma® of the Companions during the caliphate of “Umar
ibn al-Khattab, and the ijma’ that was concluded in Mecca and Medina
under the pious caliphs, are all examples of ijma in its relative sense."

Muhammad Iqbal is primarily concerned with the question of how
to utilise the potential of jm in the process of modem statutory

legislation. He considers it an important doctrine, but one that has

remained largely theoretical. ‘It is strange,’ Iqbal writes, that this

important notion ‘rarely assumed the form
tion’. He then suggests that ‘the transfer of the power of jjtihad from
individual representatives of schools to a Muslim legislative assembly
is the only possible form imi’ can take in modem times’."* In such
an assembly, the ‘wlama’ should play a vital part, but it must also
include in its ranks laymen who happen to possess a keen insight
into atlairs. Furthermore Iqbal draws a distinction between the wo
functions of ijma’, namely: discovenng the law and implementing the
law

f 4 permanent institu

The former function is related to faces and the later relates 00 the

questc

question of law, In the former case, as for ins

nce when the question atone
Whether the swo small siras known as "Mu awwasatatn” formed purt of the Que’ss
oF not ~ and the Companions unanimoualy decided that they did - we are bound
by their deciion, obviously because the Companions alone were in 3 poxition 10
know the fact. In the hatter case, the question is one of interpretadion only, and I
venture to think, an the authority of Karkht, that later generat
by the decision of the Companions.”

re not bound

It is thus clear that Iqbal retains the binding character of ijma’ only
insofar as it relates to points of fact, but not with regard to ijma’ that
is based on juridical ijtihdd, This distinction between the factual and
juridical ijma will presumably not apply to the ijma’ that Iqbal has
proposed: the collective decisions of the legislative assembly will
naturally be binding on points of law.

Igbal’s proposed reform has been widely supported by other
scholars. It is basically a sound proposal. But to relate this to the idea
of a distinction between the factual and ijnihidi imi’ seems question-
able. Apart from the difficulty that might be involved in distinguish-
ing a factual from a juridical jimi’, one can expect but little support
for the view that the ijma’ of the Companions on ijtihiidi matters is
not binding.

Iqbal's views have, however, been criticised on other grounds. S,

Sima (Consensus of Opinion) 257

M. Yusuf has observed that Iqbal was mistaken in trying to convert
imi into a modem legislative institution. Yusuf argues that ijtihad
and ijmit have never been the prerogatives of a political organisation,
and any sttempt to institutionalise ijma‘ is bound to alter the nature
of ijma and defeat its basic purpose, for ijtihad is a non-transferable
right of every competent scholar, and a mujtahid accepted by the
community by virtue of his recognised qualities, not through election
campaigns or the award of official certificates. The process of
arriving at ijmd is entirely different from that of legislation in a
modem state assembly. Jima" passes through a natural process which
resembles that of the ‘survival of the fittest’. No attempt is made in
this process to silence the opposition or to defeat minority opinion.

Opposition is tolerated wncil the truth emenges and prevails. Jima is
a manifestation of the conscience of the community, and it is due
mainly to the natural strength of ijma and the absence of rigid organ
isation ‘that no one is able to lay his hands on Islam; when anyone
tries to hammer Islam, he ultimately finds to his chagrin that he has
only been beating in the air’."*

Ahmad Hasan finds some weaknesses in Yusut’s criticism of Iqbal,
and observes that ‘Dr Yusuf has probably not understood Iqbal’s view
correctly.’ Hasan finds Iqbal's view that ijtihd should be exercised
collectively instead of being a preserve of the individual mujtahidan,
to be basically sound. 'Ijtihdd today cannot be exercised in isolation
Modem conditions demand that it should be exercised collectively.
A mujtahid may be an expert in Islamic learning, but he cannot claim
to be perfectly acquainted with the social conditions of a country and
the diverse nature of its problems.’” Ahmad Hasan goes on to point
‘out that the legislative assembly is ‘the right place’ for the purpose of
collective ijtihdd, which would in tum provide an effective method
of finding solutions to urgent problems."

Al-Sanburi highlighted the potential benefits of ijma and its contni-
bution to the development of a representative government when he
rather tersely posed the question: ‘What is more democratic than to
affirm that the will of the nation is the expression of the will of God
Himself?” Hassan Turgbi also accentuated the role ijma can play in
the democratisation of the political system in Muslim societies, and
called for a re-interpretation of jjma’. The original consensus, accord~
ing to Turabi, ‘was not the consensus of the learned élite but the more
popular consensus of the Muslim community enlightened by its more
learned members'”

‘The late Shaykh of al-Azhar, Mabmad Shaltat, observes that the

ENCE

258 PRINCIPLES OF ISLAMIC JURISPRU

conditions of a conclusive ijmd, especially that which requires the
ment of all the mujtahidiin of the ummah, is no more than a

theoretical proposition that is never expressed in reality. ima’, in
reality, has often meant either the absence of disagreement (‘adam al-
lm bi'l-mukhalif}, or the agreement of the majority only (irtifag al-
kathrah). Both of these are acceptable propositions which may form
the basis of general legislation. ShaltOt goes on to quote in support
the Qur’snic ayah in stira al-Bagarah (2:286) that ‘God does not assign
ny soul that which falls beyond its capacity’

to

aes Vp Lat dit GIS Y

ShaltOt is not opposed to the institutionalisation of imi’ provided that
it does not violate the freedom of opinion that must in all eventual-
cr be

ities be granted to the constituents of imi, Consensus must ne
subjected to a condition that subjugates freedom of opinion to the
arbitrary exercise of political power. Shaledt further adds that since
the realisation of maslahah through consensus is the objective of ima,
maslahah is bound to vary according to the circumstances of time
and place. Thus the mujtahidan who participate in ijmi’, and their
successors, should all be able to take into consideration a change of
circumstances and it should be possible for them to review a previous
ijmit if this is deemed to be the only way to realise the maylahah
Should they arrive at a second ijma’, this will nullify and replace the
first, and constitute a binding authority on all members of the
community

Badrin proposes a form of ijma which he says can be practised any
time; this is the consensus of the dll? al-amr or of the ummah on a
ruling that is not found in the textual sources, and may be founded
on ra'y, in order to secure a benefit for the people, such as consen-
sus on the leadership of a particular person, enacting a maximum limit
on ownership of agricultural lands, and declaration of war. Since
the la al-amr (those who are in charge of community affairs) are
empowered to conclude this kind of ijma* as and when they see
occasion for it, it can be concluded at any time, but must have a
strong consultative input, Such an ijma', Badrin adds, need not
depend on the unanimity of all the did al-amr, and may be concluded
even in the face of some opposition. In support of this, Badrin refers
to the report of Ibn Jarir al~Tabari, Ahmad ibn Hanbal and Abo Bakr
al-Razi to the effect that Aba Bakr was elected by ijmi® despite the
opposition of “Ali, and that the Caliph “Umar recumed from his trip

Jimi (Consensus of Opinion) 259

to Syria when he heard of the spread of cholera there after consult-
ing the leading Companions. Aba Bakr and “Umar also carmied out
consultation in administrative and judicial affairs.™*

‘As we can see, the substance of Badrin's proposal is not very
different from that of Iqbal, and even that of Shah Wall Allsh. Jjmi
must accordingly be made feasible and rendered into a practical
proposition that can be utilised as an instrument of decision-making
and legislation

Conclusion

Under their classical definitions, ijmd’ and ijtihdd were both subject
to conditions that virtually consigned them to the realm of utopia
The wnreality of these formulations is reflected in modern times in
the experience of Muslim nations and their efforts to reform certain
areas of the Sharf ah through the medium of statutory legislation. The
juristic basis for some of the modem reforms introduced in the areas
of marriage and divorce, for example, has been sought through novel
interpretations of the relevant passages of the Qur'in. Some of these
reforms may rightly be regarded as instances of ijtihdd in modern
times, yet in none of these instances do the statutory texts or their
explanatory memoranda make an open reference to ijtihad or ijmit
The total absence of these terms in modern statutes is a sad reflection
of the unreality that is encountered in the strict definitions of these
concepts. The classical definitions of ijtihdd and ijmi might, at one
time, have served the purpose of discouraging excessive divenity
which was felt to threaten the very existence and integrity of the
Shariah. But there is no compelling reason to justify the continued
domination of a practice that was designed to bring ijtihdd to a close.
Itihad and ijmi were brought to a standstill, thanks to the extremely
difficult conditions that were imposed on them, conditions which often
ran counter to the enterprising and creative spirit that characterised
the period of the pious caliphs and the early Imams of jurisprudence

Dr Yusut’s criticism of Iqbal's proposed reform is based on the
dubious assumption that an clected legislative assembly will not reflect
the collective conscience of the community, and will unavoidably be
used as an instrument of power politics. Although the cautious advice
of this approach may be persuasive, the assumption behind it goes
counter to the spirit of maslahah and of the theory of ima’ which
endows the community with the divine trust of having the capacity
and competence to make the right decisions, If one is to observe the

LAMIC JURISPRUDENCE

basic messa ismah

nity itself to elec

community, then one 1

those who will honour their collective

In addition, Dr

should be do

The critic is content with

beyond the reach of the
ntrary, the argument for taking a posit

whelming. The gap between the theory and practi

has reached alarming propor and

further will have to be exceedingly pers

every precaution to safeguard the authentic spirit and natural strength
of ijma’ is fully justified, this should not necessarily mean tota

inertia, The main issue in institutionalising ijma’, as Shaltdt has rightly
sd fe

Wenge that has to

assessed, is that freedom of opinion should be vouchsaf

the

the essence of the

be met, not through a laissez-faire attitude tow

participants of ia’, Th

od ijtihad an

but by nurturing judicious attitudes and by evolving correct methods

s that is

and procedures to protect freedom of opinion. The conse

arrived at in th will retain a great de

sp) f not all, of the most

Amid, Adm. I, v9; Shae, Doh. p>
Ami, kd, 96; Shaka, Bohad p75. ADO Zahra and “Abd a-Wi

Khali definition of imi? differs with that of Amidi and Shewkint on one point,

hhamely the subject-matter of yma! w
Zabrah, Uy, p 156 and Kb
5. Shawkdal, lohad, p 71

is confined vo shart masters only (see AbO

4 Acconding to one view, attributed to the Qidt ‘Ab slJabbiir, mi

to warfare, agnculrure, commerce, politics and administration are describ
affairs, and ijn? ix no authority
this view is that th

anding them One te

' given in support ¢
Prophet himself precluded these matien f of the

Sunnah ond the same tule ts v0 be applied 10 ip

wnt the sco}
Amadi, howe
at these restricbons do not apply to

, confirms the

majority view when he adds

his heim, 1, 2)

Jima’ (Consensus of Opinion) 261

S. ADS Zahrah, Usal, p

Mudhammaden Theorie ‘

n. Early Development, pp. 1608

2, hadtth no. #17; Ton Mijuh, Sion, II, gro, hadith no. 2924;
1. Shah Wall Allsh, Quindh. p. 4
" Ai, Thkim, 1, 226. Buzdawt, however, distinguishes matters which do not
require specialned knowledge from aners, and suggeas that no discrimination

should be made berween the layman

id the jurists regarding the enentialy of the faith

lym is tus confined to the mu

ily in regard to matters which require expert
knowledge. See for details, Basdawt, Upil tH, 25

v2, Amid, thao, 1 3

3. C£ Zubayd, Usal, pp. $867,

4. Shawkint, dnhad, p. 7

15. AbO Zahrah, Udi 2

16, Amid, Upkim, 1, 26%; Abdur Rahim, Jurisprudence

(7. AbO Zsheah, Ug 4

V8, Shawkant, dha, p. 7

19. Amid, Ishin, 1, 297; fbn Hazm, phim, 1V, 154.

20. Ghasall, Mustayl 1, 3

24. Khalla6 “Sim, pp. 4-47; Abo Zahrah, Ujdl, p. x47

Ghazal, Mustag®, 5, 137; Amid, Dikdm, 1, 319

33. The dysh (4:39) provides: ‘O you who believe, obey God and obey th
Memenger. and those changed with authority among you.

24. Rael, Tafity, 1, 24

a5. Khall, “lm, p. 4

The dah (4:83) provider y would only refer it to the Mi
who hold

it’ Qrving’

nger and thene

of theen who investigate matters would hav

among ths

Sham, 1, 21

I. avy: Ghaxat, Mussayf 1,1

Ghazal, MusioyA, 1, U0
30. Ibid
M4. Ibid,
32, Shawkani, Fath ol-Qudin, 1, $13: Shawkant, Inhad, p. 75. For a good wummary of

Shawkant's views om the subject see Sade, Und, Pp. 30-4

9. Rashid Wid, Tafity al-Mandr, Y, 201. For a similar wiew 9
34. Aunics,lskiom, 1, 3

4s. Ibid, I, a0
36. In Majah, Suman, 1, 1903. badtth no. 4940. This and a number of ocher ahddizh

dr, Wil, p. 40.

(on ifm’ have been quoted by both Ghazall and Amid as shown in foomote 41 below
37. CE Ahmad Hasan, Doctrine, p. 6.
3. Ghazal, Mustaf 1, 101
39. Amit consider dhis to be a badih wh
Prophet (ice his Aylin, 1, 214). Abimad Hasan poits out thar Mubamnad ibm Hasan

back to the

ne chain of narrnion goe

Ima" (Consensus of Opinion)

PRINCIPLES OF ISLAM RISPRUE E —_
7a. Amici, 0
40. ¢ y 75. Aba Z Uvil p ¢
41. C fw ;
Sha'ban, Usal, pp. 94-
CE Zarof, Madhibal,
f pla 0 1 “
. . Ki. Armia, Shh,
Abo Zahra, Usa c
43. bi Shih Wall Alls, Leal
44 Sade P ee a ane
: thid., p al goes on to quote the Hanafl jars Abu'l-Husan al-Karkht a
Me "The Sunnah of che Compa nding in matter. which cannot be cleared
: mabey up by ely, bur t 90 A0 matters whi be eaabbshed by qrpb pecih
- Loe 7. Mas P. 244
Kialla, “fm, 4
hat, B A ° 35
4 Amit, tl fa “npr al, ps a3
k f
Has ‘
dp
awhinl, fmhad, p. 73; Zubayl P
16. Shawknl, toh, p 7a, AbO Zaheah
i Must Mi, 034
Khali, 1 1
Buk Madim, Sablh, p07 6 Am
tba, |, 243 al Madina
he abadnh d others. Hi € of
sthert are ‘
are nd’) rep ad fn Has

CHAPTER NINE

Qiyas

(Analogical Reasoning)

Litelrally, giyas means measuring or ascertaining the length, weight or
quality of something, which is why scales are called migyas. Thus the
Arabic expression ‘qadsat al-thawb bi'Idhirit” means that ‘the cloth was
measured by the yardstick
to suggesting equality or similarity between two things. Thus the
expression *Zayd yugis ila Khalid ft ‘aghht wa nasabih’ means that ‘Zayd
compares with Khilid in intelligence and descent’. Qiyds thus

Qiyds also means comparison, with a view

suggests an equality or close similarity berween two things, one of
which is taken as the criterion for evaluating the other.

Technically, giyas is the extension of Shariah value from an origi-
nal case, or ajl, to a new case, because the latter has the same efflec-
tive cause as the former. The original case is regulated by a given text,
and giyls seems to extend the same textual ruling to the new case,’
Ic is by virtue of the commonality of the effective cause, or “illah,
between the original case and the new case that the application of
giyas is justified. A recourse to analogy is only warranted if the solu-
tion of a new case cannot be found in the Qur’in, the Sunnah ot a
definite imi? For it would be futile to resort to giyis if the new case
could be resolved under a ruling of the existing law. It is only in
matters that are not covered by the musiis and ifm that the law may

be deduced from any of these sources through the application of
analogical reasoning.*

In the usage of the fugahd’, the word ‘giyit’ is sometimes used to
denote a general principle. Thus one often comes actoss statements
that this of that ruling is contrary to an established analogy, or to a
general principle of the law without any reference to analogy as such

Qiyas (Analogical Reasoning) 265

Analogical deduction is different from interpretation in that the
former is primarily concemed with the extension of the rationale of
4 given text to cases which may not fall within the terms of its language
Qiyis is thus a step beyond the scope of interpretation. The emphasis
in qiyas is clearly placed on the identification of a common cause
between the two cases which is not indicated in the language of the
text. Identifying the effective cause often involves intellectual exer-
tion on the part of the jurist, who determines it by recourse not only
to the semantics of a given text but also to his understanding of the
general objectives of the law.

Since it is essentially an extension of the existing law, the jurists do
not admit that extending the law by the process of analogy amounts
tw establishing a new law. Qiyas is a means of discovering, and perhaps
of developing, existing law. Although giyds offers considerable poten
tial for creativity and enrichment, it 18 basically designed to endure
conformity with the letter and the spirit of the Qur'in and the
‘Sunnah. In this sense, it is perhaps less than justified to call giyds one
of the sources (majddir) of the Sharf'ah; 1t is rather a proof (hujial) or
an evidence (dalif) whose primary aim is to ensure consistency
between revelation and reason in the development of the Shai alt
Qiyls is admittedly a radionalist doctrine, but it is one in which the
use of personal opinion (ra’y) is subservient to the terms of divine
revelation. The main sphere for the operation of human judgement
in qiyas is the identification of a common “illah between the original
and the new case. Once the ‘illah is identified, the rules of analogy
then necessitate that the ruling of the given text be followed without
any interference or change. Qiy’s cannot be used, therefore, as means
of altering the law of the text on grounds of either expediency or
penonal preference

The jurist who resort to giyis takes it for granted that the rules of
Shariah follow certain objectives (magdsid) that are in harmony with
reason. A rational approach to the discovery and identification of the
objectives and intentions of the Lawgiver necessitates recourse (0
human intellect and judgement in the evaluation of the abkim. It is
precisely on this ground, namely the propriety or otherwise of adopt-
ing an inquisitive approach to the injunctions of the Lawgiver,
referred to as tall, that iyas has come under attack by the Mu'tazilah,
the Zahiri, the Sh'l and some Hanbali ‘lama’, Sinee an enquiry into
the causes and objectives of divine injunctions often involves a
measure of juristic speculation, the opponents of giyds have questioned
its essential validity. Their argument is that the law must be based on

266 PRINCIPLES OF ISLAMIC JURISPRUDENCE

certainty, whereas qiyd is largely speculative and superfluous. If the
two cases are identical and the law is clearly laid down in regard to
one, there is no case for giyds, as both will be covered by the same
law. If they are different but bear a similarity to one another, then it
is impossible to know whether the Lawgiver had intended the
subsidiary case to be governed by the law of the original case. It is
in in recognition of this element of uncertainty in giyas that
the ‘ulama’ of all the juristic schools have ranked qiyds as a ‘specula~
tive evidence’. With the exception, perhaps, of one variety of qiyis,
namely where the ‘illah of qiyds is clearly identified in the text, qiy
in general can never be as high as authority as the mags or a definite
ijma’, for these are decisive evidences (adillah qat'iyyah), whereas qiyas
in most cases only amounts to a probability. It is, in other words,
merely probable, but not certain, that the result of giyils is in confor
mity with the intentions of the Lawgiver. The propriety of giyds is
thus always co be measured by the degree of its proximity and
harmony with the muss. In our discussion of the methodology of
qiyas it will at once become obvious that the whole purpose of this
methodology is to ensure that under no circumstances does analogi-
cal deduction operate independently of the musis. It would be useful
o start by giving a few examples.

(1) The Qur'in (al-Jumu‘ah, 62:9) forbids selling or buying goods
after the last call fro Friday prayer until the end of the prayer, By anal-
ogy this prohibition is extended to all kinds of transactions, since the
effective cause, that is, diversion from prayer, is basically common to
alls

(2) The prophet is reported to have said, "The killer shall not
inherit [from his victim)’

pl oy Y

By analogy this ruling is extended to bequests, which would mean
that the killer cannot benefit from the will of his victim either.*

(3) According to a hadith, it is forbidden for a man to make an offer
of betrothal to a woman who is already betrothed to another man
unless the latter permits it or has totally abandoned his offer.

Da SoS om eel thee le Jo th be Y

The ‘illah of this rule is to obviate conflict and hostility among people
By analogy the same rule is extended to all other transactions in which

Qiyas (Analogical Reasoning) 267

the same ‘illah is found tw be operative.’ One can refer to numerous
instances, in the area of mu‘amalat, where the rules of figh have been
developed through analogy. Note, for example, the following,

(1) Many of the textual rulings of the Shari“ak concerning contract
of sale have by analogy been extended to other contracts, stich as those
of lease and hire (al-ijdrah) as the latter is in effect sale of the usufruct
and has an aspect in common with the sale of objects.

(2) The Swiniah has validated the option of stipulation (Khiydr alshar))
for the buyer for the purpose mainly of protecting him against fraud.
By analogy, the jurists have granted the same facility to the seller, as
he too may be in need of protection,

(3) The textual rulings of Sharfah obligate the usurper to return the
object to its owner, if the object is still in existence, but to compensate
the owner if the object has been disposed of or consumed. This ruling
has by analogy been extended to the case where the usurper has
converted the object into something else, stich as converting steel into
a sword or wheat into bread, for the owner's right to the original
property ceases when it is converted into something that is referred
to by a different name, and he is therefore entitled to compensation.”

The majority of ‘wlama’ have defined qiyds as the application to a
new ease (fr), on which the law is silent, of the ruling (hukm) of an
original case (aj!) because of the effective cause (‘illah) which is in
common to both? The Hanafi definition of giyds is substantially
the same, albeit with a minor addition designed to preclude certain
varieties of giyds (such as qiyas al-avld and giyas al-musdwh) from the
scope of gids. The Hanafi jurist, Sadr al-Shari‘ah, in his Tawdth, as
translated by Aghnides, defined giyds as ‘extending the [Shar ah]
value from the original case over to the subsidiary [far'] by reason of
an effective cause which is common to both cases and cannot be
understood from the expression [concerning the original case]
alone.” The essential requirements of qiyas that are indicated in these
definitions are as follows.

(1) The original case, of asl, on which a ruling is given in the text and
which analogy seeks to extend to a new case. (2) The new case ( far’)
‘on which a ruling is needed. (3) The effective cause (‘ilah) which is an
attribute (wagf) of the asl and is found to be common to the original
and the new case. (4) The rule (bulm) governing the original case which
is to be extended to the new case. "' To illustrate these, we might
adduice the example of the Qur'an (3I-Ms'idah, $:90) which explicitly
forbids wine-drinking. If this prohibition is to be extended by analogy
to narcotic drugs, the four pillar of analogy in this example would be:

268 PRINCIPLES OF ISLAMIC JURISPRUDENCE

asl far ‘lah hrulem

wine-drinking taking drugs __ intoxicating effect prohibition
Each of the four essentials (arkdn) of analogy must, in turn, qualify of
other conditions that are all designed to ensure propriety and accuracy

in the application of giyds, It is to these which we now turn.

I. Conditions Pertaining to the Original Case (As!)

Asl has two meanings, Firstly, it refers to the source, such as the
Qur’in or the Sunnah, that reveals a particular ruling. The second
meaning of ail is the subject matter of that ruling. In the foregoing
example of the prohibition of wine in the Qur'an, the asl is both the
Qur'in, which is the source, and wine, which is the original case or
the subject-matter of the prohibition. However, to all intents and
purposes, the two meanings of ail are convergent. We tend to use asl
as to imply the source as well as the original case, for the latter consti-
tutes the subject-matter of the former, and the one cannot be separated
from the other."*

The ‘wlama’ are in unanimous agreement that the Que’dn and the
Sunnah constitute the sources, ot the asl, of giyis. According to the
majority of jurists, giyds may also be founded on a rule that is estab-
lished by jm’, For example, ijmd validates guardianship over the
property of minors, a rule that has been extended by analogy to
authorise the compulsory guardianship (wallyh al-ijbdr) of minors in
marriage,"

There is, however, some disagreement as to whether ijmd’ consti-
tutes a valid asl for giyds, Those who dispute the validity of ijma as
a basis of analogical deduction argue that the rule of consensus do no
require that there should be a basis (sanad) for ijmd’, In other words,
iima’ does not always explain its own justification of rationale. In the
absence of such information, it is difficult ¢o construct an analogy. In
particular, it would be difficult to identify the ‘illah, and qiyis cannot
be constructed without the ‘illah.'* But this view is based on the
assumption that the ‘illah of qiyds is always identified in the sources,
which is not the case.

The ‘illah may at times be specified in the sources, but when this
is not s0, it is for the mujathid to identify it in the light of the objec
tives (magasid) of the Lawgiver. The mujtahid, in ocher words, is faced
with the same task whether he derives the ‘illah from ijma® or from
the nujiy, Furthermore, the majority view that validates the found-

Qiyas (Analogical Reasoning) 269

ing of analogy on ijmi' maintains that consensus itself is a basis (sanad),
and that the effective cause of a ruling that is based on consensus can
be identified through ijtihad,"?

According to the majority of ‘wlamd’, one giyiis may not constitute
the asl of another giyiis. This is explained in reference to the effective
cause on which the second analogy is founded. If this is identical with
the original ‘illah, then the whole exercise will be superfluous. For
instance, if it is admitted that the quality of edibility is the effective
cause that would bring an article within the scope of usury (riba’) then
this would justify an analogy to be drawn between wheat and rice
But an attempt to draw a second analogy between rice and edible oil
for the purpose of extending the rules of ribé to the latter would be
unnecessary, for it would be preferable to draw a direct analogy
between wheat and edible oil, which would climinate the inter-
mediate analogy with rice altogether.”

However, according to the prominent Maliki jurist, Ibn Rushd
(whose views are here representative of the Maliki school) and some
Hanbali ‘wlamd’, one giyds may constitute the asl of another: when
‘one giyds is founded on another giyas, the far’ of the second becomes
an independent asl from which a different ‘illah may be deduced. This
process may continue ad infinitum with the only proviso being that
in cases where analogy can be founded in the Qur’in, recourse may
not be had to another giyds."” But al-Ghazill rejects the proposition
of one giyds forming the as! of another altogether. He compares this
to the work of a person who mes to find pebbles on the beach that
look alike. Finding one that resembles the original, he then throws
away the original and tries to find one similar to the second, and so
‘on. By the time he finds the tenth, it will not be surprising if it turns
‘out to be totally different from the first in the series, Thus, for al-
Ghazal, qiyis founded on another giyiis is like speculation built upon
speculation, and the further it continues along the line, the more real
becomes the possibility of error.'*

Having discussed Ibn Rushd’s view at some length, however, Abd
Zahrah observes that from a junstic viewpoint, one has little choice but
to agree with it, This is reflected, for example, in modem judicial
practice where court decisions are often based on the analogical exten-
sion of the effective cause (Le. ratio decidend() of an existing decision
to a new case. The new decision may be based on the rationale of a
previous case but may differ with it in some respect. In this event, itis
likely to constitute an authority in its own right. When, for example,
the Cassation Court (mahkamah al-nagd) in Egypt approves a judicial

270 PRINCIPLES OF ISLAMIC JURISPRUDENCE

dan analogy upon

ruling, it becomes a point of reference in itself
it is made whenever appropriate without further inquiry into its
origin. What Abi Zahrah is saying is that the doctrine of sare decisis,
which is partially adopted in some Islamic jurisdictions, take for
granted the validity of the idea that one giyas may become the asl of
another qiyds."”

According to the Syrian jurist Mustafi al-Zargi, the formula that
one giyds may be founded on another gids has in it the seeds of enrich-
ment and resourcefulness. No unncessary restrictions should therefore
be imposed on giyas and on its potential contribution to the Shari ah.™

II, Conditions Pertaining to the Hukm

A bukm is a ruling, such as a command of a prohibition, dispensed
by the Que’ln, the Sunnah or ijmi', and analogy seeks its extension
to a new case, In order to constitute the valid basis of an analogy, the
jukm must fulfil the following conditions.

(1) Te must be a practical shar'f ruling, for giyde is only operative in
regard to practical matters inasmuch as this is the case with figh as a
whole, Qiyds can only be attempted when there is a buknr available
in the sources. In the event where no hukm can be found in any of
the three sources regarding a case, and its legality is determined with
reference to a gencral maxim such as original freedom from liability
(al-bari’ah al-asliyyah), no hukm can be said to exist. Original freedom
from liability is not regarded as a hukm shar and may not therefore
form the basis of giyas.""

(2) The hulem must be operative, which means that it has not been
abrogated. Similarly, the validity of the hukm that is sought to be
extended by analogy must not be the subject of disagreement and
controversy

(3) The hukm must be rational in the sense that the human intellect
is capable of understanding the reason of the cause of its enactment,
or that the ‘illah is clearly given in the text itself. For example, the
effective cause of prohibitions such as those issued against gambling
and misappropriating the property of another is easily discernible. But
when ad hukm cannot be so understood, as in the case of the number
of prostrations in salah, or the quantity of 2akah, it may not form the
basis of analogical deduction. Ritual performances, or ‘ibadat, on the
whole, are not the proper subject of giyds simply because their effte-

tive causes cannot be ascertained by the human intellect. Although
the general purpose of ‘ihadat is often understandable, this is not

Qiyas (Analogical Reasoning) 271

sufficient for the purpose of analogy. Since the specific causes (al-‘ilal
al-juz’iyyah) of ‘ibadat are only known to Almighty God, no analogy
can be based upon them.

All the rational abkdim (al-abkam al-ma'gilah), that is laws whose
causes are perceivable by human intellect, constitute the proper basis of
giyas, According to Imam Ab0 Hanifih, who represents the majority
opinion, all the muss of Shariah are rational and their causes can be
ascertained except where it is indicated that they fall under the rubric
ibadat. The Zabirls and ‘Uthmin al-Batti, a contemporary of AbO
Hanifah, have, on the other hand, held that the effective causes of
the musts cannot be ascertained without an indication in the nusiis
themselves. This view clearly discourages enquiry into the causes of
the rules of Sharf'ah and advises total conformity to them without any
search for justification or rationale.” “We do not deny’, writes Ibn
Hazm, ‘that God has assigned certain causes to some of His laws, but we
say this only when there is a nasy to confirm it.’ He then goes on to
quote a hadith of the Prophet to the effect that ‘the greatest wrongdoer
in Islam is one who asks about something which is not forbidden,
and it is then forbidden because of his questioning.”

eat oe She oe LA cnabell cnnbell piel of
a Pe

vane ol op gle (ia Onell) de pet
Tom Hazm continves: “We firmly deny that all the ahksim cf Shar ah
can be explained and rationalised in terms of causes. Almighty God
enacts a law as He wills.’ The question of “how and why" does not
and must not be applied to His will. Hence it is improper for anyone
to enquire, in the absence of a clear text, into the causes of divine

laws. Anyone who poses questions and searches for the causes of
injunctions “defies Almighty God and commits a transgression’
he will be acting contrary to the purport of the Qur'an where God

describes Himself saying, "He cannot be questioned for His acts, but
they will be questioned for theirs’ (al-Anbiya', 21:23).”

ara py Ju te dee ¥

Itisthus known, Ibn Harm concludes, that causes of any kind do not
apply to the acts and words of God, for justification and 1a'l is the
work of one who is weak and'compelled (mudtan), and God is above
all this. **

PRINCIPLES OF ISLAMIC JURISPRUDENCE

The issue of causation acquires a special significance in the context
of divinely-ardained laws, simply because revelation was discontinued
with che demise of the Prophet, who is no longer present to explain
and identify the causes of the revealed laws. The Muslim jurists, like
other believing Muslims, have shown a natural reluctance to be too
presumptuous in their efforts to identify the causes of divine laws. But
the issue does not pose itself in the same way regarding secular or
man-made law. The norm in regard to modern laws is that they all
have identifiable causes that can be ascertained with reasonable
certainty, As such, analogical deduction in the context of modem law
is a relatively easier proposition, But there are certain. restrictions
which discourage a liberal recourse to analogy even in modern law
For one thing, the operation of analogy in modern law is confined
to civil law. In the area of crimes, the constitutional principle of
legality discourages the analogical extension of the text. It should
be further noted that owing to extensive reliance on statutory
legislation, there is no crime and no punishment in the absence of a
statutory text that clearly defines the offence or the penalty in question.
Crimes and penalties are thus to be governed by the text of the law
and not by the analogical extension of the text. It will thus be noted
that owing to the prevalence of statutory legislation in modern legal
systems, the need for recourse to analogy has been proportionately
diminished. This in turn explains why qiyils tends to play a more
prominent role in the Sharf'ah than in modern law

But in Shariah law too, as we shall later elaborate, there are restric
tions on the operation of qiyds in regard to crime and penalties. The
qf, as a result, may not draw analogies berween, for example, wine~
drinking and hashish owing to the similar effects that the might have
on the human intellect. Nor may the crime of zind be made the basis
of analogy so as to apply its penalty to similar cases.”

(4) The fourth requirement concerning the bulm is that it must
not be confined to an exceptional situation or to a particular state of
affairs. Qiyds is essentially designed to extend the normal, not the
exceptional, rules of the law, Thus when the Prophet admitted the
testimony of Khuzaymah alone to be equivalent to that of two
witnesses, he did so by way of an exception, The precedent in this
case is therefore not extendable by analogy.” Some of the rulings of
the Qur'in which relate exclusively to the Prophet, such as polygamy
beyond the maximum of four, of the prohibition in regard to marriage
for the widows of the Prophet (al-Abz3b, 33:53), are similarly not
extendable by analogy. The legal norms on these matters have been

Qiyis (Analogical Reasoning) 273

laid down in the Que’an, which enacts the minimum number of
witness at two, the maximum for polygamy at four, and allows a
widow to remarry after the expiry of the waiting period of *iddah:

(3) And lastly, the law of the text must not represent a departure
from the general rules of giyis in the first place. For example, travel-
ling during Ramadan is the cause of a concession that exonerates the
traveller from the duty of fasting. The concession is an exception to
the general rule that requires everyone to observe the fast, It may
therefore not form the basis of an analogy in regard to other types
of hardship. Similarly, the concession granted in wuda" (ablution) in
regarding to wiping over boots represents a departure from the
general rule which requires washing the feet. The exception in this
case is not extendable by way of analogy to similar cases such as socks.

But according to the Shafi'ls, when the ‘illah of a ruling can be
clearly identified, analogy may be based on it even if the ruling was
exceptional in the first place. For example, the transiction of ‘arlya,
or the sale of fresh dates on the tree in exchange for dry dates, is
exceptionally permitted by hadith, notwithstanding the somewhat
usurious nature of this transaction: the rules of ribi’ forbid the
exchange of identical commodities of unequal quantity. The ‘lah of
this permissibility is to fulfil the need of the owner of unripe dates
for the dried variety, By way of analogy, the Shafi'ls have validated
the exchange of grapes fr raisins on the basis of a similar need. The
Hanafis have however disagreed, as the ruling of ‘ardyd is exceptional
in the first place.”

Ill. The New Case (Far’)

The far’ is an incident of a case whose ruling is sought by recourse
to analogy. The far’ must fulfil the following three conditions.

(1) The new case must not be covered by the text o ijmd, for in
the presence of a ruling in these sources, there will be no need for
recourse to giyds. However, some Hanafi and Maliks jurists have at
times resorted to giyr even in cases where a ruling could be found
in the sources. But they have done so only where the ruling in ques-
tion was of a speculative type, such as a solitary hadith. We shall have
occasion to elaborate on this point later.

(2) The effective cause of analogy must be applicable to the new
case in the same way as to the original case, Should there be no
uniformity, or substantial equality between them, the analogy is tech~
ically called qiyils ma'al farig, or “giyas with a diserepancy’, which is

274 PRINCIPLES OP ISLAMIC JURISPRUDENCE

invalid. If, for example, the ‘illah of the prohibition of wine is intoxi-
cation, then a bevarage that only causes a lapse of memory would
differ from wine in respect of the application of the ‘illah, and this
would render the analogy invalid.”

To give another example, according to the Hanafis, a sane and adult
woman is competent to conclude a contract of marriage on her own
behalf. They have inferred this by analogy to the Qur’3nic ruling (al-
Nisi', 4:6) which entitles her to enter business transaction of her own
free will. The majority of jurists, however, disagree, as they consider
the analogy in question to be giyds with a discrepancy. Marnage differs
from other transactions; business transactions are personal matters, but
marriage concems the family and the social status of the parents and
guardians, Hence an analogy between marriage and other transactions
is unjustified

(3) The application of giyds to a new case must not result in altering
the law of the text, as this would mean overruling the text by means
of qiyds which is wlira vires, An example of this is the case of false
accusation (gadhf) which by an express mags (s0ra al-Nor, 24:4) consti
tutes a permanent bar to the acceptance of one's testimony. Al-Shafi'l
has, however, drawn an analogy between false accusation and other
grave sins (kabd'ir): a person who is punished for a grave sin may be
heard as a witness after repentance. In the ease of false accusation,
tao, repentance should remove the bar to the admission of testimony
To this the Hlanafls have replied that an analogy of this kind would
overrule the law of the text which forever proscribes the testimony
of a false accuser,"

On a similar note, the validity of the contract of salam has been
established in a hadith which defines it as the advance sale of an article
to be delivered at a fixed rate. But when the Shafi'ls hold chat such
4 contract is lawful even if no date is fixed for delivery, they are
charged with introducing a change in the law of the text.!*

IV, The Effective Cause (“Mlah)

This is perhaps the most important of all the requirements of giyis

The ‘illah has been variously defined by the ‘wlama’ of usiil. According
to the majority, it is an attribute of the aj! which is constant and
evident and bears a proper (mundsib) relationship to the law of the
text (hukm). It may be a fact, a circumstance, or a consideration which
the Lawgiver has contemplated in issuing a hukm. In the words of
uyul, the ‘illah is alternatively referred to as mandt al-bukm (i.e. the

Qiyas (Analogical Reasoning) 275

cause of hukm), the sign of the hulem (amiirah al-hukmi) and sabab} Some
uulama’ have attached numerous conditions to the ‘illah, but most of
these are controversial and may be summarised in the following five

(1) According to the majority of ‘ulama’, the ‘illah must be a constant
attribute (mundabif) which is applicable to all cases without being
affected by differences of persons, time, place and circumstances. The
Milikis and the Hanbalis, however, do not agree with this require-
ment as they maintain that the ‘illah need not be constant, and that
it is sufficient if the ‘illah bears a proper or reasonable relationship to
the hukm, The difference between the two views is that the majority
distinguish the effective cause from the objective (bikmah) of the law
and prechude the latter from the scope of the ‘illah.°

The ‘illah is constant if it applies to all cases regardless of circum-
stantial changes. To give an example, according to the rules of pre-
emption (shu), the joint, ot neighbouring, owner of a real property
has priority in buying the property whenever his partner ot his
neighbour wishes to sell is. The ‘illah in pre-emption is joint owner-
ship itself, whereas the hikmah of this rule is to protect the partner/
neighbour against possible harm that may arise from sale to a third party,
Now the harm that the Lawgiver intends to prevent may materialise
or it may not. As such, the hilemah is not constant and may therefore
not constitute the ‘illah of pre-emption. Hence the ‘illah in pre-emption
is joint ownership itself, which unlike the bikmah is permanent
and unchangeable, as it does not fluctuate with such changes in
circumstances.

The majority view maintains that the rules of Shar'ah are founded
on their causes (‘ilal), not in their objectives (bikam). From this, it
would follow that a hukm shar'f is present whenever its ‘illah is present
even if its “illah is no, and a hukm shar't is absent in the absence of
its ‘illah even if its hikmah is present. The jurist and the judge must
therefore enforce the law whenever its ‘illah is known to exist regard
less af its hikmah, Hence it will be a mistake for a judge to entitle to
the right of pre-emption a person who is neither a partner nor a
neighbouring owner on the mere assumption that he may be harmed
by the sale of the property to a certain purchaser.”

The Malikis and the Hanbalis, on the other hand, do not draw any
distinction between the ‘illah and the hikmah, In their view, the
hikmah aims to attract an evident benefit or preventing an evident
harm, and this is the ultimate objective of the law. When, for example,
the law allows the sick noteto observe the fast, the hikmah is the
prevention of hardship to them. Likewise the hikmah of retaliation

276 PRINCIPLES OF ISLAMIC JURISPRUDENCE

(qisa9) in deliberate homicide, or of the hadd penalty in theft, isto.
+ the lives and properties of the people. Since the realisation of
it (maslahah) and prevention of harm (maftadah) is the basic
purpose of all the rules of Shariah, it would be proper to base an

analogy on the bikimah.

Qiyas that is founded on majlahah, or giyas al-maslaht, according to
Ibn Rushd, is a more versatile giyds, which is why it is also known
as qiyis al-mursal, in that it follows the dictates of maslabah as a general
objective of the Shariah, even at the expenses of some vagueness in
the specifics of the ‘illah and ayl, Among modem writers, Hasan
Turibt considers this to be a preferable giyids, as it is not burdened by
the technicalities of ‘illah; and he refers to it interchangeably as gids
ahijmals, that is, open or versatile analogy."*

The Hanafls and the Shafi, however, maintain chat “illah must be
both evident and constant. In their view the “illah secures the hikmah
most of the time but not always, Their objection to the hikmah being
the basis of analogy is that the bikmah of the law is often a hidden
quality that cannot be detected by the senses, and this would in turn
render the construction of analogy upon it unfeasible. The hikmah is
also vanable according to circumstances, and this adds further to the
difficulty of basing analogy on it. The hikmah, in other words, is
neither constant nor well-defined, and may not be relied upon as a
basis of analogy

To give an example, the permission granted to travellers to break
the fast while travelling is to relieve them from hardship. This is the
hikmah of this ruling, But since hardship is a hidden phenomenon and
often varies according to persons and circumstances, it may not
constitute the effective cause of an analogy. The concession is there-
fore attached ¢o travelling itself which is the ‘illah regardless of the
degree of hardship that it may cause to individual travellers.”

To give another example, the ‘illah in the prohibition of passing a
red traffic light is the appearance of the red light itself. The hikomal is
to prevent irregularities and accidents. Anyone who passes a red light
is committing an offence even if no accident is caused as a result. The

‘lah and hikmah can as such exist independently of one another, the
latter being less easily ascertainable than the former. On a similar note,
the ‘Illa in awarding a law degree is passing one’s final examinations
and obtaining the necessary marks therein. The hikemah may be the
acquisition of a certain standard of knowledge in the disciplines
concemed. Now it is necessary that university degrees are awarded
on a constant and reliable basis, which is passing the exams. The

Qiyas (Analogical Reasoning) 277

acquisition of legal knowledge often, but not always, goes hand in
hand with the ability to pass exams, but this by itself is not as readily
ascertainable as the exam results are.

(2) As already stated, the effective cause on which an analogy is
based must also be evident (zahir), Hidden phenomena such as inten-
tion, goodwill, consent, etc., which are not clearly ascertainable may
‘not constitute the ‘illah of an analogy. The general rule is that the ‘illah
must be definite and perceptible to the senses. For example, since the
consent of parties to a contract is imperceptible in its nature, the law
proceeds upon the act of offer and acceptance. Similarly the ‘illalt in
establishing the paternity ofa child is matrimonial cohabitation (qiydm
Jarish al-zaujiyyah) or acknowledgement of paternity (igrdi), both of
which are external phenomena and susceptible to evidence and proof.
Since conception through conjugal relations between spouses is not
an obvious phenomenon, it may not form the ‘illah of paternity. On
a similar note, che law adopts as the ‘illah of legal majority, not the
amainment of intellectual maturity, but the completion of a certain
age, which is evident and susceptible to proof.”

(3) The third condition of ‘illah is that it must be a proper attribute
(al-wasf al-mundsib) in that it bears a proper and reasonable relation~
ship to the law of the text (bukm). This relationship is mundsib when
it serves to achieve the objective (bikmah) of the Lawgiver, which is
to benefit the people and to protect them against harm. For example,
killing is a proper ground on which to exclude an heir from inheri-
tance. For the basis of succession is the tic of kinship which relates
the heir to the deceased, which is severed and nullified by killing.
Similarly, the intoxicating effect of wine is the proper cause of its
prohibition, An attribute that does not bear a proper relationship to
the hukm does not qualify as an “illah.\"

(4) The “illah must be ‘transient’ (muta'adds), that is, an objective
quality which is transferable to other cases, For analogy cannot be
constructed on an ‘illah which is confined to the original case only.
As the Hanafis explain, the very ewence of ‘illah, as much as that of
giyds in general, is its capability of extension to new cases, which
means that the ‘illak must be a transferable attribute. Travelling, for
example, is the ‘illah of a concession in connection with fasting. As
such, it is an “illah which is confined to the ag! and cannot be applied
in the same way to other devotional acts (“ibdda!). Similarly, if we
were to confine the ‘illah in the prohibition of intoxicants to wine
derived from grapes, we would be precluding all the other varieties of
intoxicants from the scope of the prohibition. Transferability (a'diyah)

278 PRINCIPLES OF ISLAMIC JURISPRUDENCE

of the eff wired by the Shifi‘ss, who
have validated giyis on the basis of an ‘illah that is confined to the
original case (i.e. ‘illah qasieak). The Shafi‘ls (and the Hanafi jurist Ibn
al-Humim) have argued that 1a'diyah is not a requirement of the ‘illah
when the ‘illah is confined to the original case, it is probable that the
lawgiver had intended it as such, The probability may not be ignored
merely for the lack of ta'diyah. It is a requirement which is intellec
tually conceived without due regard for the precise terms of the law
itself. The Shifi'ls have further argued that the utility of che ‘illah is
not to be sought solely in its transferability. There is thus no inherent
objection to the possibility of an ‘illah being confined to the original
case. The ‘wlama’ are, however, in agreement that textually prescribed
causes must be accepted as they are regardless of whether they are
inherently transient or not

The requirement of ta'diyah would imply that the ‘tllah of analogy

cause is not, however, re

must be an abstract quality and not a concrete activity or object. To
illustrate this, we may again refer to the foregoing examples.
Travelling, which is a concession in connection with fasting, isa
concrete activity, whereas intoxication is an abstract quality that is
not confined in its application. Similarly, in the hadith regarding usury
(riba’), the ‘illah of its ruling, which prohibits quantitative excess in
the sale of six specified articles, is the quality of such articles being
saleable by the measurement of weight or capacity and not their
particular species. The hadith thus provides that ‘gold for gold, silver
for silver, wheat for wheat, barley for barley, dates for dates and salt
for salt must be equal for equal, hand to hand’. Transactions in these
commodities must, in other words, be without excess on either side
and delivery shall be immediate, otherwise the transaction will amount
to usury, which is forbidden. The ‘illah of this prohibition is none of
the concrete objects that are specified but an attribute or a concept
that apphes to all, namely their saleability by capacity or weight.”

pred pattly ll lly cami duadlly ail all
vy yelp ober Jie Sh « cll cll pal jay

(s) Finally, the effective cause must not be an attribute that runs
counter to, or secks to alter, the law of the text. To illustrate this we
may refer to the story of a Maliki judge whe was asked by an Abbasid
ruler about the penance (kaffirah) of having conjugal relations during
daytime in Ramadan. The judge responded that the kaffarah in this

Qiyais (Analogical Reasoning) 279

case was sixty days of fasting. This answer was incorrect as it sought
to introduce a change in the text of the hadith which enacted the
kaffarah to be freeing a slave, or sixty days of fasting, or feeding sixty
poor persons. The fated given by the judge sought to change this order
of priority on the dubious assumption that frecing a slave (or feeding
sixty persons) was an easy matter for a ruler and he should therefore
be required to observe the fasting instead. The ‘illah of the penance
in this case is held to be the breaking of the fast itself and not any
disrespect to the sanctity of Ramadin, nor having sexual intercourse
with one’s wife. The fanwi here was in line with the position taken
by Imim Malik in so far as it was held that the purpose of kaffirah
was to inflict hardship. This was the underlying ‘illah of that far,
which was admittedly appropriate (mundsit) to the ruling it contained,
but it was invalid simply because the Lawgiver had overruled it by
granting a choice in the kaffirah of fasting. The Maliki school is also
in agreement with other leading schools regarding the clement of
choice in the kaffarah of fasting. To give another example, suppose
that someone issues a farwd which entitles the daughter to an equal
share of inheritance with the son, based on the specious ‘illah that
they are equal in respect of blood tie to the deceased. Equality in
blood tie (gardbah) may seem an appropriate basis for ‘illak in inheri~
tance, but since the Lawgiver has overruled it by virtue of a clear text,
the fatwi? would be invalid simply because it seeks to alter the law of
the text.

Our next discussion concerning the ‘illah relates to the question of
how the “illiah can be identified. Are there any methods that the jurists
muy utilise in his search for the correct cause or rationale of a given
law?

IV.1 Identification of the “Illah

The effective cause of a ruling may be clearly stated, or suggested by
indications in the nass, or it may be determined by consensus. When
the ‘illah is expressly identified in the text, there retains no room for
disagreement. Differences of opinion arise only in cases where the
‘illah is not identified in the sources. An example of an ‘ilah that is
expressly stated in the text occurs in sira al-Nisi’ (4:43): ‘O you
believers! Do not approach salah while you are drunk.”

iy Ba Ny at aT all al

280 PRINCIPLES OF ISLAMIC JURISPRUDENCE

This aydh was revealed prior to the general prohibition of wine
5:93), but it provides, nevertheless, a
e hadith

drinking in sfra al-Ma’i
clear reference to intoxication, which is also confirmed by th
7 is forbidden’.

ant is khamr and every k

the a IS me Some IS

In another place, the Qur’in explains the effective cause of its ruling
on the distribution of one-fifth of war booty to the poor and the

Every into}

needy "so that the wealth does not accumulate in the hands of the
rich’ (al-Hashr, $927)

Se else) one Aye ONY S

Jin the hadith v

text itself identifies

Instances are also fe €
the rationale of its ruling. Thus the e
permission when entering a private dwelling is stated in the hadith

which says, ‘Permission is required for the sake of what your sight

ective cause of asking for

may fall on {and which you are not permitted to see}

epttal or O39) Jar Li

The ‘illah of asking for permission is thus to protect the privacy of
the home against intrusion." In these examples, the occurrence of

certain Arabic expression such as kay-li ($0 as not to), li-ajl (because
of), ete., are associated with the concept of ratiocination (ta’lil) and
provide definite indications of the ‘illah of a given ruling.

Alternatively, the text that indicates the ‘illah may be manifest nasg
(al-nass al-zahir) which is in the nature of a probability, or an allusion
(al-fma" wa'L-isharah). Indications of this type are also understood from
the language of the text and the use of certain Arabic particles such
as li, fa, bi, anna and inna, which are known to be associated with
ta'lil. For example, in the Qur'inic text (al-Ma'idab, §:38): "As to the
thieves, male and female, cut off [fa-gfa'd] their hands’

Lagi | pabi a3,L Shy GLI

Theft itself is the cause of the panishment. Instances of this type are
also found in sdra al-Nar (24:2 and 4) regarding the punishment of
adultery and false accusation respectively. In Sra al-Nisi' (4:34) we
find another example as follows: "As for women whose rebellion

Qiyais (Analogical Reasoning) 281

you fear, admonish them and leave them alone in their beds, and
physically punish them.’

Clo cA aly om ghand oajyti OE Orly

In this text, mushiiz is the effective cause of the punishment.” The
writers on sjill give numerous examples of instances where the Qur'an
provides an indication, however indirect, as to the ‘illah of its ruling.**

The text of a hadith may allude to the ‘illah of its ruling, There is,
for example, a hadith stating that the saliva of cats is clean “for they
are usually around in the homes’

2 gall y Sole cil all oe

Their domesticity, in other words, is the effective cause of the
concession. Thus, by way of analogy, all domestic animals would be
considered clean, unless it is indicated otherwise, And lastly, in the
hadith providing that, “The judge who is in a state of anger may not
adjudicate’

sWlnae pry al aby

anger itself is the ‘illak of the prohibition.” By analogy, the
Companions have extended the ruling of this hadith to anything that
resembles anger in its effect, such as extreme hunger or depression.

Sometimes the word sabab is used as a substitute for ‘illah. Although
sabab is synonymous with “illah and many writers have used it as such,
sabab is normally reserved for devotional acts (ibddaf) whose rationale
is not perceptible to the human intellect, The text may sometimes
provide an indication as to its saab. Thus we find that sOra al-Isra’
(17:78) enjoins the believers to ‘perform the salih from the setting of
the sun until the dark of night’

Jv Se St atl Syl steal pl

and the sabab (cause) of saldh is the time when the salah is due. Since
the cause of the ruling in this text is not discemable to human intellect,
it is referred to as sabab, but not as an ‘illah. From this distinction, it
would appear that every ‘illah is at the same time a sabab, but noc
every sabab is necessarily an ‘illah.’*

Next, the effective cause'of a ruling may be established by consen-

282 PRINCIPLES OF ISLAMIC JURISPRUDENCE

sus. An example of this is the priority of full brothers over half-
brothers in inheritance, the ‘illah of which is held to be the former's
her. This ruling of ijmé’ has subsequently
logy according to which the germane

superior tie with the 1
formed the basis of an a
brother is also given priority over the consangu:

¢ brother in respect

of guardianship (w#ldyah). Ijmd" has also determined the ‘illah of the
father’s right of guardianship over the property of his minor child to
be the minority of the child. Once again this right has, by analogy,
been acknowledged for the grandfather.” No jimi can, however, be
claimed to exist in regard to the ‘illah of the father’s right of guardian~
ship over the property of his minor daughter. While the majority of

wlama’ consider the ‘illah in this case to be minority, for the Shati'ts,
the ‘illah in ijbar is virginity, The right of ijbdr thus terminates upon
loss of virginity even if the girl is still a minor.”*

When the ‘illah is neither stated nor alluded to in the text, then
the only way to identify itis through ijtihdd. The jurist thus takes into
consideration the attributes of the original case, and only that attribute
which is considered to be proper (mundsib) is identified as the “illah
For example, in the hadith referred to above conceming the penance
of conjugal relations during daytime in Ramadin, it is not precisely
known whether the ‘illah of penance is the breaking of the fast (iffi),
or sexual intercourse. Although intercourse with one’s wife is lawful,
it may be that in this context it is regarded as a form of contempt for
the sanctity of Ramadin, But it is equally reasonable to say that inter-
course in this content is no different to other forms of ifidr, in which
case it is the ifidr itself that is the ‘illah of the penance. The method
of reasoning which the mujtahid employs in such cases is called tangth
al-manij, or isolating the ‘illah, which is to be distinguished from two
other methods referred to as takhrij al-mandy (extracting the “illah) and
tahgiq al-manay (ascertaining the “illah) respectively. This process of
enquiry is roughly equivalent to what is referred to by some ‘wlama’
of sal as al-sidr wa'l-tagsimt, oF elimination of the improper, and
assignment of the proper, ‘illah to the Inukem.

Taangih al-mandy implies that a ruling may have more than one cause,
and the mujtahid has to identify the one that is proper (muniisib), as was
the case in the foregoing examples. Literally, tangih means "connect=
ing the new case to the original case by eliminating the discrepancy
berween them’ (ili al-far bi'l-agl bi-ilgha? al-firiq).**

Tangihal-manay is thus mainly concemed with identifying the
correct ‘illah from a range of attributes that are indicated in the text
In this sense, cangth al-manat is almost exclusively concerned with the

Qiyds (Analogical Reasoning) 283

textually indicated ‘illah and the mujathid ascertains the most appro-
priate of the various alternatives. To give an example, we may refer
to the hadith in which a bedouin came to the Prophet and wid: ‘I had
deliberate conjugal relations with my wife in daytime in Ramadin
Then the Prophet said to him, “Manumit a slave

oP) tab ale Obaany UY al eadly
AB) Se}: ley Ue SH Le

The text here indicates several possibilities to identify the “illah, some
of which are not appropriate to the ruling it contains. The fact, for
example, that he was a bedouin is not relevant to the hukm, nor the fact
that he had intercourse with his wife (not with a stranger, that is). The
effective ‘illah is, therefore, deliberate intercourse in the daytime of
the fasting month and this is the only cause for the expiation (kaffaral)
thar is prescribed in the hadith. When the mujtahid has isolated this as
the effective cause, he has completed the procedure that is involved
in tangth al-manay.”

Extracting the ‘illah, or takdrlj al mandy, is in fact the starting point
in the enquiry into the identification of ‘illah, and often precedes tangih
al-mana. In all cases where the text of ijmd' does not identify the
effective cause, the jurist extracts it by looking at the relevant causes
via the process of ijtihdd. He may identify more than one cause, in
which case he has completed one step involved in takhrij al-manay and
must move on to the next stage, which is to isolate the proper cause.
To illustrate this, the prohibition of usury (ribd’) in wheat and five
other articles is laid down in the hadith, When the jurist secks to draw
an analogy between wheat and raisins ~ to determine for example
whether one should apply the tax of one-tenth by analogy to raisins
= the ‘illah may be any of the following: that both of them sustain
life; that they are edible; that they are both grown in the soil; of that
they are sold by measure. Thus far the jurist has completed the first
step, namely extracting the ‘illah. But then he proceeds to eliminate
some of these by recourse to tangih al-mandp. The first ‘illah is elimi
nated because salt, which is one of the six articles, does not sustain
life; the second is also eliminated because gold and silver are not edible;
and so is the third as neither salt nor precious metals are grown in the
soil. The ‘illah is therefore the last attribute, which belongs to all the
specified items in the hadith of riba’. The difference between the wo
stages of reasoning is that inv taklij al-mandy, the jurist is dealing with

284 PRINCIPLES OF ISLAMIC JURISPRUDENCE

4 situation where the ‘illah is not identified, whereas in. tangih al-

mandt, more than one cause has been identified and his task is to select

the proper ‘illah.
Ascertaining the ‘illah, or tahgiq al-mandy, follows the two preceding

stages of investigation in that it consists of ascertaining the presence
of an ‘illah in individual cases. For the purpose of drawing an analogy
between wine and a herbal drink, for example, the investigation that
leads to the conclusion that the substance in question has the intoxi-
cating quality in common with wine is in the nature of tahgig
Similarly, in the case of drawing an analogy between a thief and a
pickpocket, the investigation as to whether of not the latter falls under
the definition of theft is in the nature of tahgig al-mandt. Finding
proof, in other words, that the given ‘illah in the asl which is already
extracted and isolated, whether textually indicated or arrived at
Uhrough inference and ijtihdd, is present also in the far, is in the nature
of tabgig al-mana, To give another example, suppose that wo disput-
ing parties agree that the ‘illah of the prohibition of riba in barley is
that at sustains life, but they are in doubt about whether this quality
is also present in figs. When they are able to confirm by necessary
evidence that figs also possess the same quality, their investigation will
have been made in the nature of sthgig al-mand.

To illustrate all three steps at issue, we refer again to the hadith in
which a bedouin Arab came to the Prophet in Medina and confessed
that he had had deliberate conjugal relations with his wife during the
day in Ramadin. The Prophet then ordered him to pay the specified
haffarah (cxpiation) for his violation. The text of this hadith does not
clarify the precise ‘illah for the expiation. Was it because the incident
took place in the holy month of Ramadan, or in Medina, or because
the perpetrator was an Arab or a bedouin, or because the actual ‘illah
was none of these and the kaffirah was imposed simply because of the
deliberate breaking of the fist? By the time the mujtahid has explored
these various possibilities in order to identify the precise ‘illah, he has
completed the step involved in takhri ‘at. Then, finally, the
investigation into whether sexual activity, like eating food, satisfies
a bodily desire, and therefore resembles eating and drinking in
relationship to fasting, is in the nature of tahgig al-mandy.3*

-manst

V. Varieties of Qiy

as

From the viewpoint of the strength or weakness of the ‘illal, the
Shafi'i jurists have divided giyis into three types.

Qiyas (Analogical Reasoning) 285

(1) ‘Analogy of the superior’ (giyds al-awia). The effective cause in
this gipas is more evident in the new case than the original case, which
is why it is called giyds al-mwla. For example, we may refer to the
Qui'Snic text in siira al-[sr3" (17:23) which provides regarding parents
“Say not to them “Fie” nor repulse them, but address them in dignified
terms.”

LES Vp Lb Joy gs Vy TLS Js

By analogy it may be deduced that the prohibition against lashing or
beating them is even more obvious than verbal abuse. Similarly, the
penance (kaffarah) for unintentional killing is, by way of analogy,
applicable to intentional killing as the transgression that entails the
keaffirah is even: more evident in the latter, This is the Shafi'ls view, but
the Hanafls do not consider the first example to be a variety of giyas
but a mere implication of the text (dalla al-nass) which falls within
the scope of interpretation rather than analogy. Likewise, the Hanafls
do not require kaffirah for deliberate killing, a ruling that has been
determined on grounds of interpretation rather than giyis.

(2) ‘Analogy of equals’ (giyds al-musdwt), The ‘illah in this type of
giyits is equally effective in both the new and the original cases, as
is the ruling that is deduced by analogy. We may illustrate this by
reference to the Qur'in (al-Nisi’, 4:3), which forbids “devouring the
property of orphans’, By analogy, it is concluded that all other forms
of destruction and mismanagement which lead to the loss of such
property are equally forbidden. But this is once again regarded by the
Hanafis to fall within the scope of interpretation rather than analogy.
To give anothet example, according to a hadith, a container which is
licked by a dog must be washed seven times.

we Ge a ghebl obi] Q ASI Ay 15}

The Shifi't extend the same ruling by analogy to a container licked
by swine, The Hanafis, however, do not allow this hadith in the first
place.**

(3) “Analogy of the inferior’ (giyils al-adnd), The effective cause in
this form of qiyils is less clearly effective in the new case than in the
original. Hence it is not quite so obvious whether the new case falls
under the same ruling that applies to the original case, For example,
the rules of riba prohibit the exchange of wheat and other specified
commodities unless the two amounts are equal and delivery is

286 PRINCIPLES OF ISLAMIC JURISPRUDENCE

immediate. By analogy this rule is extended to apples, since both wheat
and apples are edibl to Shafi jurists) and. measurable
(according to Hanafl jurists). But the ‘illah of this qiyds is weaker in
¢ wheat, are not a staple food.*

iyds proper but, as
ler the first two

(accordi

regard to apples which

This type of giyds is w
stated earlier, the Hanaf
varieties to fall within the meaning of the text. It would appear that

erm ‘giyds’ only to that type of deduction

snimously accepted as 4

and some Zahirls cor

the Hanafis apply ch
which involves a measure of ijtih

The fir two varieties are too

ect for the Hanafis to be considered instances of giyas.”
Qiyiis has been further divided into two types, namely ‘obvious
analogy’ (giyas jalf) and ‘hidden analogy’ (qiyds khaft). This is mainly
1 Hanafl division. In the former, the equation between the asl and
far 1s obvious and the discrepancy between them is removed by clear
evidence. An example of
between the male and the female slave with regard to the rules of
manumission, Thus if two persons jointly own a slave and one of them
sets the slave free to the extent of his own share, it is the duty of the
imam to pay the other part-owner his share and release the slave. This
ruling is explicit regarding the male slave, but by an ‘obvious analogy
the same rule is applied to the female slave. The discrepancy of gender
in this case is of no consequence in regard to their manumission,“

The ‘hidden analogy’ (qiyas khaft) differs from the ‘obvious analogy
in that the removal of discrepancy between the asl and che far’ is by
means of a prohibition (zann). Shawkin! illustrates this with a refer
ence to the (wo varieties of wine, namely nabidh and khamr. The former
is obtained from dates and the latter from grapes. The rule of prohi-
bition is analogically extended to nabidh despite some discrepancy
that might exist beeween the two. Another example of giyils khaft
is the extension, by the majority of the ‘lama’ (except the Hanafls),
of the preseribed penalty of 2ina to sodomy, despite the measure of
discrepancy known to exist between the two cases. And finally, the
foregoing analysis would suggest that qiyds khaff and qiyis al-adnd are
substantially concurrent.

is the equation the ‘ulama” have drawn

VI. Proof (Hujjtyyah) of Qiyas

Notwithstanding the absence of a clear authority for giyds in the
Qur'an, the ‘ulama’ of the four Sunni schools and the Zaydi Shi‘ah
have validated qiyas and quoted several Qur’anic passages in support
of their views. Thus, a reference is made to sfira al-Nist’ (4:59) which

Qiyis (Analogical Reasoning) 287

reads, in an address to the believers, ‘Should you dispute over some-

thing, refer it to God and to the Messenger, if you do believe in
God.”

FO} Spey BH St oped ot Q pests of

Sy ong

The proponents of qiyis have reasoned that a dispute can only be
referred to God and to the Prophet by following the signs and indi-
cations that we find in the Qur’in and the Surah. One way of
achieving this is to identify the rationale of the abkdm and apply them
to disputed matters, and this is precisely what giyas is all about.” The
same line of reasoning has been advanced with regard to a text in sOra
al-Nisa’ (4:10) which proclaims: “We have sent to you the Book
with the Truth so thar you may judge people by means of what God
has shown you

Bi BN eA cw pS GAL OS CL) gl

A judgement may thus be based on the guidance that God has
clearly given or on that which bears close similarity to it,” The
Que'in often indicates the rationale of its laws either explicitly or by
reference to its objectives. The rationale of retaliation, for example,
is to protect life, and this is clearly stated in the text (al-Baqarah, 2:79)
Likewise, the rationale of zakdh is to prevent the concentration of
wealth in a few hands, which is clearly stated in the Qur'an (al-Hlashr,
59:7). Elsewhere in the Qur’3n, we read in a reference to the permis-
sibility of tayammum (ablation with sand in the absence of water) that
‘God does not intend to impose hardship on you' (al-Ms'idah, $:6)

CP oo Se Jams ail ey

In alll these instances, the Qur’n provides clear indications that call
for recourse to qiyils. In the absence of a clear ruling in the text, giys
must still be utilised as a means of achieving the general objectives of
the Lawgiver, It is thus concluded that the indication of causes and
objectives, similitudes and contrasts, would be meaningless if they
were not observed and followed as a guide for conduct in the deter-
mination of the akdm."*

The proponents of giyas have farther quoted, in support of their

288 PRINCIPLES OF ISLAMIC JURISPRUDENCE

I-Hashr (59:2) which enjoins: "Consider, O

ara

n

views, av
osseson of cy

you

ual Sob typcels

‘Consideration’ in this context means attention to sin

arisons between similar things. Two other dydt that are variously

1 by the ‘wlamd’ occur in sOra al-Nazi‘St, that “there is a leson

com
que
in thi

Ae hips ad Q of

and in Al-Imrin (3:13) which tells us that ‘in their narratives there

was a lesson for those who possessed vision’

last SV Fp EUs Qo}

There are two types of indication in the Sunnah to which the propo:

nents of qiyas have referred:

(1) Qiyas is a form of ijtihdd, which is expressly validated in the
hadith of Mu'idh ibn Jabal. It is reported that the Prophet asked
Mu‘idh, upon the latter's departure as judge to the Yemen, questions
in answer to which Mu‘adh told the Prophet that he would resort to
his own ijtihid in the event that he failed to find guidance in the
Qur'in and the Sunnah, and the Prophet was pleased with this reply
Since the hadith does not specify any form of reasoning in particular
z falls within the meaning of this badtth.

satu

analogical reasoni

6B AS, paail sf clea WU oe 13] aa
TY gly deel del d Ob 6 BIS es afd op
Big all BL: Siby opie le BI Spey Gad

BN Spey pop Sd Spey

Qiyits (Analogical Reasoning) 289

(2) The Sunnah provides evidence that the Prophet resorted to
analogical reasoning on occasions when he did not rece
tion on a particular matter. On one such occasion, a woman called
Khath‘amiyyah came to him and said that her father had died with
out performing the hajj. Would it benefit him if she performed
the hajj on her father's behalf? The Prophet asked her; ‘Supposing
your father had a debt to pay and you pay it an his behalf, would
this benefit him?’ To this her reply was in the affirmative, and the
Prophet said, "The debt owed to God merits even greater consider
ation."? .

OF Juhl data - ploy ade di le 5
6 pt CNG PLUS any OST ced 29 ULI le
vlad gol Bi ab: Ub Sua

It is also reported that “Umar ibn al-Khatyib asked the Prophet
whether kissing vitiates the fast during Ramadin. The Prophet asked
him in return: ‘What if you gargle with water while fasting?’ ‘Umar
replied that this did not matter. The Prophet then told him that ‘the
answer to your first question is the same’.”"

The Companions are said to have reached a consensus on the
validity of giyds. We find, for example, that the first caliph, Abo Bakr,
drew an analogy between father and grandfather in respect of their
entitlements in inheritance, Similarly, ‘Umar ibn al-Khattib is on
record as having ordered AbO Masi al~Ash'Ari ‘to ascertain the simili
tudes for purposes of analogy’.”* Furthermore, the Companions pledged
their fealty (bay“ah) to AbO Bakr on the strength of the analogy that
‘Umar drew between two forms of leadership: ‘Umar asked the
Companions, "Will you not be satisfied, as regards wordly affairs, with
the man with whom the Prophet was satistied as regards religious
Affairs?” And they agreed with ‘Umar, notwithstanding the fact that
the issue of succession was one of the utmost importance.” Again,
when the Companions held a council to determine the punishment
of wine-drinking, ‘AM ibn Abi Talib suggested that the penalty of
false accusation should be applied to the wine drinker, reasoning by
way of analogy: ‘When a person gets drunk, he raves and when he
raves, he accuses falsely." It is thus concluded that giydr is validated
by the Qur'an, the Sunnah and the ijma of the Companions.

290 PRINCIPLES OF ISLAMIC JURISPRUDENCE

VII, The Argument against the Qiy

This has been advanced mainly by the Zahisi school and «

heir leader, Ibrahim al-Nazzi.

Mu'tazilah, including The leading
Zahiri jurist, Ibn Hazm, is the most outspoken against giyis. The
main points of his argument may be summarised as follows

(1) The mules. of the Sharfah are conveyed in the form

‘ommands and probibitions, There are also the intermediate cate~

(mandab) and “rephensible” (maken

ermissible). There are thus

gories of ‘recommended

are essentially two varieties of mubih

only three types of abkdm: command, prohibition and p

falls
under the principles of ihthah (permissibility) which is established in
ed by the

Should there be no clear text in respect of any matter, then i

the Qur’i.”” Commands and prohibitions are deten

Jear authority of the Qur’in, the Sunnah or ijma’, in whose absence
nothing else can determine an obligatory or prohibitory injunction

and the matters will automatically fall into the category of mubill

There is thus no room

analogy in the determination of the

alvkarn,”

(2) The supporters of analogy, according to Ibn Hazm, proceed on
the assumption that the Sharf'ah fails to provide 3 mayy
matter, an assumption which is contrary to the explicit provisions of
the Qur'an, Ibn Hazm goes on to quote the following to this effect
We have neglected nothing in the Book’ (al-An"im, 6:38)

or every

fet op SI Q Lb DL

and "We revealed the Book as an explan:

ion for everything’ (al-Nabl.
16:89),

eg JS WLS OSI thle zl
In yet another passage, we read in the Qur'an: “This day, I perfected

your religion for you, and completed my favour upon you' (al-

Ma'idab, §:3)

Gt Sle cats Se pS LAST py

Since the altkdm of the lawgiver are all-inclusive and provide complete
guidance for all events, our only duty is to discover and implement
them. To consider giyas to be an additional proof is tantamount to

Qiyds (Analogical Reasoning) 291

an acknowledgement that the Qur’in fails to provide complete
guidance.”

(3) Qiyas derives its justification from an ‘illah which is common
to both the original and the
in the text, in which case the ruling is derived from the text itself and
giyas is redundant; or alternatively, where the “illah is not indicated.
there is no way of knowing it for certain; giyds therefore rests on
conjecture, which must not be allowed to form the basis of a legal
ruling. This is, according to Ibn Hazm, the purport of the Qur'inic
yah (al-Najm, $3:28) which proclaims that “conjecture avails nothing
against the truth’

ew case, The “illah is either indicated

SH ee ge Ya oly

Identifying the “illah in qiyis is an exercise in speculation, where
Qur'dn enjoins us to ‘pursue not that of which you have no know!
edge’ (al-Isra’, 17:36).

pee db ii Vy

(4) And lastly, fbn Hazm holds that qiyds is clearly forbidden in the
Qur'an.” Thus we read in sOra al-Hujarit (49:1): 'O you believers!
Do not press forward before God and His Messenger, and fear God”

the

Bi iyathy Spey BN say oy Las YT cd

Which means that the believers must avoid legislating on matters on
which the Lawgiver has chosen to remain silent, The same point is
conveyed in the hadith where the Prophet ordered the believers:

Ack me not about matters that | have not raised. Nations before you were faced
ony with their

with destruction becaue of excenive questioning and diyruu
propbes. When 1 command you to de something, do it to the extent that you
can, and avoid what Ihave forbidden.”

pels 5S SLE OS oy elle Lipp PSS FL Gye
Ue aes bythe ote Sa pl IBY cg de pe adhly
wt yl ect oF Sack Ny pane!

292 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Thus in regard to matters on which the nass is silent, it is not proper
for a Muslim to take the in ng a hukm, for he is ordered
not to do so. Qiyds therefore violates the express terms of the Qur’s

and the Sunnah,

To sum up, Ibn Hazm’'s argument is based on two main points,
one of which is that the musiis of the Qur'an and the Sunnah provide
for all events, and the other is that giyds is an unnecessary addition to
the nusils, Regarding the first point, the majority of ‘ulama’ hold the
view that the nusits do admittedly cover all events, either explicitly
or through indirect indications. However, the Zahirls rely only on
the explicit musiy and not on these indirect indic
on the other hand, go beyond the confines of literalism and validate
giys in the light of the general objectives of the Sharfah. For the
majority, giyas is not an addition oF a superimposition on the musi
but their logical extension. Hence the Zahiri argument that giyar
violates the integrity of the nusiis is devoid of substance."'

With reference to some of the Qur'inic passages that the opponents
of qiyis have quoted, especially on the use of speculative evidence
in law, it is contended that the dydt in question forbid recourse to
speculation (zann) in matters of belief only. As for the practical rules
of figh, most of them partake of zann, and a great deal of the mupils
are themselves speculative in their purport and implication (zanni
al-dalalah). But this does not necessarily mean that action upon
them must be suspended. On the contrary, a measure of diversity and
variation in the practical rules of the Sharf‘ah is not only tolerated, it
is considered a sign of the bounty of Almighty God, and the essence
of flexibility in the Shariah,”

In principle, the Shi'ah Imamiyyah do not recognise the validity
of giyis, as they maintain that qiyds is pure conjecture which must
be avoided. In addition, the Qur'an, the Sunnah and the rulings
of the imams, according to the Shi't ‘wlama’, provide sufficient
guidance for conduct, and any reference to analogy is unnecessary
and unwarranted." This is definitely the view of the Akhbari branch
of the Twelver Shi‘ah, whose refutation of qiyas closely resembles
that of the Zahiris. But the Us0li branch of the Sht‘ah validate action
upon certain varieties of giyds, namely giyas whose “illah is explicitly
stated in the text (giyiis mansiis al-‘illah), analogy of the superior (giyas
al-awid) and obvious analogy (giyids jalf). These varieties of giyas, in

ions, The majority,

their view, are not mere speculations; they cither fall within the
meaning of the text or else constitute a strong probability (al-zann
al-qawi) which may be adopted as a guide for conduct. But they

Qiyiis (Analogical Reasoning) 293

validate this through recourse to ijtihdd and ‘agi rather than to qiyis
per se’

VIII. Qiyas in Penalties

The ‘ulama’ of the various schools have discussed the application of
giyas to juridical, theological, linguistic, rational and customary matters,
but the main question that needs to be discussed here is the applica-
tion of analogy in regard to prescribed penalties (hudid) and penances
(katara).

The majority of ‘wlama’ do not draw any distinction in this respect,
and maintain the view that qiyds is applicable to liudiid and kaffardt in
the same way as it is fo other rules of the Shariah, This is explained
by reference to the Qur'inic passages and the hadith that are quoted
in support of qiyis, which are all worded in absolute terms, none
drawing any distinction in regard to penalties: and since the evidence
in the sources does not impose any restriction on qiyds, it is therefore
applicable in all spheres of the Shariah." An example of qiyas in
regard to the hudild is the applicason of the punishment of theft to
the nabbash, or thief who steals the shroud of the dead, as the common
‘illah between them is taking away the property of another without
his knowledge. A hadith has also been quoted in support of this
ruling,” Similarly, the majority of the ‘ulama’ (excluding the Hanatls)
have drawn an analogy between zind and sodomy, and apply the hdd
of the former by analogy to the latter.”

The Hanafls are in agreement with the majority to the extent that
giyas may validly operate in regard to ta'zir penalties, but they have
disagreed with the application of gipis to the prescribed penalties and
kaffarat. They would not, for example, approve of an analogy between
abusive words (sabt) and false accusation (qadh/), nor would they
extend the hadd of zind by analogy to other sexual offences. These,
according to the Hanafls, may be penalised under ta'zir but not by
analogy with the hndid, The main reason that the Hanafls have given
is that giyds is founded on the ‘illah, whose identification in regard
to the hudad involves a measure of speculation and doubt. There is
a hadith that provides: ‘Drop the hudad in case of doubt as far as
possible, If there is a way out, then clear the way, for in penalties, if
the imam makes an error on the side of leniency, it is better than
making an error on the side of severity.”

4 PRINCIPLES OF ISLAMIC JURISPRUDENCE

CEOS Of c pce cel pe att that
Of cp se pill 9 ae Of (LEY! Of cab Ins
Ayia) Q eda

It is thus concluded that nay level of doubt is ascertaining the ‘illah
of hadd penalties must prevent their analogical extension to similar
As stated above, the majority validate the application of giyiis in
regard to kaffirdt, Thus the analogy between the two forms of break-
ing the fast (iffdr), namely deliberate eating during the month of
Ramadan and breaking the fast by having sexual intercourse, would
extend the kaffirah of the latter to the former. Similarly, the majority
have validated the analogy between deliberate killing and uninten-
tional killing for the purposes of kaffirah. The Qur'an only prescribes
4 kaffirah for erroneous killing, and this is extended by analogy to
deliberate homicide. The common ‘illah between them is the killing
of another human being. If kaffirah is required in erroneous killing,
then by way of superior analogy (giyis al-awla) the ‘illah is even more
evident in the ease of a deliberate killing. Both are therefore liable to
the payment of kaffarah, which is releasing a slave, or two months
fasting, or feeding sixty persons. The Hanafi are once again in
disagreement with the majority on this, as they maintain that, for the
purposes of analogy, the kaffirah resembles the hadd. Since doubt
cannot be totally eliminated in the identification of their effective
causes, kaffirdt may not be extended by means of analogy.”
Notwithstanding the fact that the jurists have disagreed on the
application of giyas in penalties, it will be noted chat the “ulama” have
on the whole discouraged recourse to giyds in the field of criminal
law. Consequently, there is very little actual qiyas to be found in this
field. This is also the case in modem law, which discourages analogy
in respect of penalties. The position is somewhat different in regard to
civil transactions (mu dmaldi), in which giyi is generally permitted.*"

IX. Conflicts between Nays and Qiyiis

Since the ‘illah in analogy is a general attribute that applies to all
similar cases, there arises the possibility of giyits coming into conflict
with the musi. The question to be asked is how such a conflict should

Qiyas (Analogical Reasoning) 295

be removed. Responding to this question, the ‘ulama’ have held to
different views, which may be summarised as follows:

(1) According to Imam Shifi‘i, Abmad Ibn Hanbal and one view
which is auributed to AbG Hanifh, whenever there is a nasy on a
matter, giyds is absolutely redundant. Qiyas is only applicable when
no explicit ruling can be found in the sources, Since recourse to
giyiis in the presence of nass is ultra vires in the first place, the question
of a conflict arising between the najy and giyas is therefore of no
relevance.

(2) The second view, which is mainly held by the Malikis, also
precludes the possibility of a conflict between giyds and a clear text,
but does not dismiss the possibility of a conflict arising between a
speculative text and giyas. Analogy could, according to this view,
come into conflict with the ‘damm of the Qur’n and the solitary
hadith,

The Hanafls have maintained that the ‘mm is definitive in implica~
tion (gar al-dalalah), whereas qiyds is speculative. As a rule, a specula-
tive item cannot qualify a definitive onc, which would mean that qiyas
does not specify the ‘dmm of the Qur'an. The only situation where
the Hanafis envisage a conflict between giyis and the ‘admm of the
Qur'in is where the ‘illah of giyds is stated in a clear nays. Por in this
case, a conflict between the ‘dn of the Qur'an and qiyas would be
that of one gaff with another. However, for the most part qiyds is
speculative evidence, and as such may not specify the “dmm of the
Qur'an, But once the ‘dmm is specified, on whatever grounds, then
it becomes speculative itself, at least in respect of that part which
remains unspecified. After the first instance of specification (rakhsiy),
in other words, the “dmm becomes speculative, and is then open to
further specification by means of giyds. For example, the word bay’
(sale) in the Qur'anic text stating that ‘God has permitted sale and
prohibited usury’ (al-Baqarah, 2:27)

US pay col al Joly

is ‘amm, but has been qualified by solitary hadith which prohibit
certain types of sale. Once the text has been so specified, it remains
‘open to further specification by means of giyas.”

This was the Hanafl view of conflict between a general text and
iyds. But the Malikis, who represent the majority view, consider the
Samm of the Qur'an to be speculative in the first place. The pomibility
is therefore not ruled out, according to the majority, of a conflict

296 PRINCIPLES OF ISLAMIC JURISPRUDENCE

event, the majority
ciple may be specified

arising between the mags and the giyis. In such
would apply the rule thar one speculative pri
by another. Based of
arists, may specify the ‘dmm of the Qur'in and the Sunnah.>*

As for the conflict
that Imim Sha‘, Ibn Hanbal and Abd Hanifah do not give priority
to qiyds over such a hadith, An example of this is the vitiation of
ablution (wudi’) by loud laughter during the performance of saldh,
which is the accepted rule of the Hanafi school despite its being
contrary to qiyits. Since the rule here is based on the authority of 2

this analysis, giyds, according to m

corded

‘ween qiyits and a solitary hadith, it is

solitary hadith, the latter has been given priority over giyas, for qiyds
would only require vitiation of the salah, not the wud.

Chae Mery yl ail — peg ale dil gle — pil oe 53
a aally eye yl ay Ol Dy

Although the three imams are in agreement on the principle of
giving prionity to solitary hadith over giyis, regarding this particular
hadith, only the Hlanafls have upheld it, The majority, including
ImAm Shafi'l, consider it to be mursal and do not act on it.

Additionally, there are other views on the subject which merit
brief attention, AbO al-Husayn al-Bayti, for example, divided giyas
into four types, as follows:

(2) Qlyds which is founded on a decisive nays, that is, when the
original case and the effective cause are both stated in the mays. This
type of qiyds takes priority over a solitary hadith

(2) Qiyils which is founded on speculative evidence, that is, when
the ajl is a speculative text and the ‘illah is determined through
logical deduction (istinbay). This type of qiyds is inferior to a solitary
hadith and the latter takes priority over it, Al-Basti has claimed an
ii

on both one and two above.

(3) Qiyas in which both the asl and the ‘lah are founded on specu-
lative musts, in which case it is no more than a speculative form of
evidence and, should it conflict with a solitary hadith, the latter akes
priority. On this point, al-Basri quotes Imam al-Shafi' in support of
his own view.

(4) Qiyds in which the ‘illah is determined through istinbay but
whose ayl isa clear text of the Qur'an of mutawitir hadith. This type
of giyis is stronger than two and three above, and the ‘wlama” have
differed on whether it should take priority over a solitary hadith.”

Qiya

(Analogical Reasoning) 297

The Malikis, and some Hanbali “wlama’, are of the view that in the
event of a conflict between a solitary hadith and qiyés, if the latter can
be substantiated by another principle or as! of the Sharfah, then it
will take priority over a solitary hadith. If, for example, the ‘illah of
giyas is ‘removal of hardship’, which is substantiated by several texts,
then it will add to the weight of qiy’s, and the latter will ake priority
over a solitary hadith. For this kind of evidence is itself an indication
that the hadith in question is weak in respect of authenticity.”
Similarly, some Hanafls have maintained that when a solitary hadith,
which is in conthiet with giyas, is supported by another giyds, then it
must be given priority over the conflicting giyds. This is also the view
thar Ibn al-‘Arabi has attributed to Imim Malik, who is quoted to
the effect that whenever a solitary hadith is supported by another
principle, then it must take priority over qiyis. But if no such support
is forthcoming, the solitary hadith must be abandoned. For example,
the following hadith has been found to be in conflict with another
principle: *When a dog licks a container, wash it seven times, one of
which should be with clean sand."

Mp gow a plnld oli} 9 AS ay 13}

It is suggested that this solitary hadith is in conflict with the permis-
sibility of eating the flesh of game that has been fetched by a hunting
dog. The game is still lawful for consumption, notwithstanding its
having come into contact with the dog's saliva. There is, on the other
hand, no other principle that could be quoted in support of cither
of the two rulings, so qiyds takes priority over the solitary hadith
Our second example is of a solitary hadith that is in conflict with one
principle but stands in accord with another, This is the hadith of
‘anya, which provides that "the Prophet (upon whom be peace)
permitted the sale of dates on the palm tree for its equivalent in dry
dates’,

de ih de = Bh Spey of (2) a op 5
Ally ty — ploy

This is permitted despite its being in conflict with the rules of
riba’. However, the permissibility in this case is supported by the
principle of daf* al-haraj or “removal of harship’ in that the trans-
action of “ardyd was permitted in response to a need and, as such, it

298 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Qiyis (Analogical Reasoning) 299

takes priority over the giyds which might bring it under the rules of

riba”

Conclusion

Qiyis has always been seen as the main vehicle of ijtihad, so much so
that Imim al-Shafi'] considered qiyds and ijtihdd as two words with
the same meaning. A substantive principle of usil-al-figh, qiyds really
ranks third among the hierarchy of proofs next to the Qur’in and the
Sunnah, Ijma, although given third place in the hierarchy of proofs, is
basically a procedural, rather than substantive, principle and, important
as itis, it has no methodological juristic corpus of its own, The history
of early Islamic juristic thought is closely aligned with analogical
reasoning, with the obvious purpose of extending the letter and spirit
of the text to all cases that fall within its broader purpose and rationale
We also note, however, that giyils saw its heyday in earlier times when
the scope was wide open for legal development. But since giyas is
tied to the text, it is not an interminable source and the scope for its
application has been progressively narrowed, and new developments
through qiyits have become increasingly limited, There are a few cases
or examples of qiyas in the works either of figh or usiil al-figh. Modern
textbooks on ujil often reproduce and repeat the same examples that
were known to the ‘ulamal’ of earlier centuries. This may partly explain
why the conventional methodology of qiyds has come under criticism
for being, too restrictive to serve the purpose of reconstruction and
ijtihad in modern times. Qiyas should, as a matter of principle, be
attempted only when no ruling conceming a new issue can be found
in a clear text, Qiyis is therefore expected to extend the law to new
territories and serve as a vehicle for enhancing and enriching the
existing law, Turibi has observed that "the conventional giyas [al-giyils
al-taqlidi| is a restrictive form of analogy which is supplementary tw
interpretation and sheds light only in clarifying some aspects of the
ahkam'. In the context of contemporary jurisprudence, qiyas that holds
the promise of enrichment, Turabi adds, is the natural and original
aiyas (al-giyas al-fitri al-hun) which is free of the difficult conditions
that were appended to it, initially by the Greeks and subsequently by
Muslim jurists, in order to ensure stability in the development of the
Shari‘ah.'® Aba Sulayman has observed that giyds in areas of social
interaction should be broad and comprehensive. ‘A long loss of time
and a radical change of place may leave little practical room for the
method of partial and case to case qiyas.’ We need to depart from

the pedanticism of conventional giyis to one which is ‘systematic,
conceptual, abstract and comprehensive'."”"

The mujtahid and judge would naturally need to exercise caution

in the construction and application of giyds. The jurist normally
ascertains the ratio legis of an existing law which is then extended by
analogy to a new problem. The process involved here resembles that
of the common law doctrine stare decisis, The judge distinguishes the
tatio decidendi of an existing judicial decision in reference to a new
case and, once it is established that the two cases have the same ratio
in common, the ruling of the earlier decision is analogically extended
to the new case. The idea of ratio legis in the civil law system, and of
ratio decidendi in common law, is substantially the same as that of the
illah (and its broader equivalent, the hikmah) in Islamic jurispru-
dence.’ With regard to the identification of ‘illah in giyas the
precedent of the Companions and the leading imams is unequivocal
on the point that the norm in regard to fa'lil (ratiocination) is
maglabah, from which fa'Iil derives its basic argument. It was only at
a later stage that the jurists of the Hanafi and Shifi'l schools departed
from the maslabah-based ¢a’lil, known as bikmah, toward the more
technical concept of ‘illah. But, even s0, the ‘illah was still largely based
on maslabah, albeit that ‘illah stipulated certain conditions, namely
that the maylabah in question should be constant (mundabif) so that it
did not change with changes of circumstance. The ‘illah was also to
rely on majlabah that was evident (zahit) and not a hidden factor that
could not be ascertained by the senses. Al-Ghazali thus noted that it
is the maslabah that determines the hukm but, since it could be hidden
factor, ‘illah was proposed as a substitute, for the latter only relied on
the manifest attributes of that maslahah.'® Al-Shatibi attempted to
equate the two concepts of ‘illah and hikmah by saying that “illah
consisted of nothing other than the rationale and benefit (al-hikomah
wua'l-mayalib) that lay at the root of the laws (abkim) of Shart ah,
Hence ‘the ‘illah is identical with the maslabah and it docs not merely
represent a manifest attribute of maslahah: we therefore disregard the
notion of the “illah being constant and evident’,!

It is indeed the bikmak itself in which the ‘illah is rooted, such as
lapse of intellect, which is the hikmah in the prohibition of wine-
drinking, and this is reflected in intoxication, the latter being the ‘illah
of the same prohibition. The Malikis and Hanbalis who validated
hikmah as the basis of qiyds did not require the hikmah to be constant
and evident, provided that it consisted of a proper attribute (wayf
munasib) and was in harmony with the objectives of the Lawgiver.

300 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Qiyds (Analogical Reasoning) 301

Hikmah is thus a more open concept than ‘“illak and is a direct
embodiment of the rationale and objective of a particular
which an analogy may validly be founded.

The fact remains, however, that the jurists of the post-classical

period (muta'akhkhinn) went far in the direction of adding to the

technicalities of ‘illah in qiyds. The resule of this was that giyds itself

lost its grounding in maslahah, and its original vision and purpose
grasping the maylahah of the people became subject to the exercise
of specious reasoning,’ We note yet another irregularity in the

application of qiyis in that the jurists of the post-classical period
showed a tendency to declare many things, including transactions that
served popular needs, prohibited on grounds merely of doubeful
qlyas. This somewhat facile application of qi
the Qur’anic principle of raf‘al-haraj (removal of hardship) and its
forbidden to you has been clearly explained’

# stood in contrast with

declaration that ‘what
(al-An‘am, 6:119)

pe eS Sahay

and also the legal maxim which declares that ‘permissibility is the normal
state of thingy
that liberal use of gids in regard to prohibition is not advisable.

We note that in all this, it is the judge/jurist whose attitude and
vision in the application of giyds is the more important determinant of
the contribution judgements can make to the enrichment of Sharf ah.
Parviz Owsia has ascertained the utility of giyds in judicial decision-
making and compared it to some of its parallel concepts in modem
law. It is thus noted that the search in the civil law system for ratio
legis, and under common law system for ratio decidendi, or under an
Islamic system for the underlying rationale (hikemah or mandf) of a rule,
may all discharge similar functions, depending, of course, on the basic
approach ane is inclined to take. They cause, under a restrictive vision,
the rigidity of the law, but conversely they serve, with a visionary
outlook, the flexibility and adaptability of the law.” The skill and

A careful observance of these guidelines surely suggests

insight of the judge in determining the ratio of a case is once again
highlighted by another observer who stated that the ratio of a case is
neither found in the reason given in the judge's opinion nor in the
rule of law set forth in that opinion, nor even by a consideration of
all ascertainable facts, Rather, the ratio is to be found by reference to
the facts that the judge has treated as material and the decision that is
based on those facts

The following three stages of enquiry are involved in the construc
tion of an analogy: (1) perception of relevant likeness between the
factual issues as defined by the court in a previous case; (2) determi-
nation of the ratio decidendi of the previous case; (3) the decision to
apply the ruling of the previous case to the present case. It is then
suggested that the first of these three steps is essentially psychological,
and therefore not entirely govemed by the elements in the legal
system." Wisdom and application of “good sense’, rather than a
mechanical or fixed set of logical rules, is recommended in the deter-
mination of ratio decidendi. I¢ thus appears that the fears of rigidity and
the concem over strict adherence to precedent is ever-present in
constructing an analogy in both Islamic law and Western junispru:
dence. The concem here was vividly voiced by Lord Gardener who
declared in 1966, while representing the Lords of Appeal in ordinary,
that ‘their Lordships regard the use of precedent as an indispensable
foundation....they recognise nevertheless that too rigid adherence to
precedent may lead to injustice in a particular case and also unduly
restrict the proper development of the law’.""

The broad purpose of this message is applicable to giyds, which is
the nearest equivalent in Islamic law to the common law doctrine of
Judicial precedent. It is ironic to note, however, that Islamic law does
hot recognise judicial precedent as a binding proof precisely because
of its restrictive effect on ijtihad. The integrity of ijtihad was deemed
to be liable to compromise if judicial precedent were to carry a bind
ing force on the lower courts. The ruling of one judge or mujtahid
essentially carries the same authority as that of another, But the rigidity
that the Muslim jurist tried to avoid in this instance was visited upon
him through the imposition of burdensome technicalities on giyits
The correct advice in both instances is surely to avoid rigid con-
formity to precedent at the expense of losing sight of the broad
purpose and objective of the law

NOTES

Amit, A, 11, 4

Ghazals, Muouay, 1 4.

Shawkant, dha, p. 198.

CE Abdur Rahim, Juripradencr, p. 13.

Khalaf, “tn, p. $22

‘hn. Qayyime, him, 11, 243; Abdtor Rahim, Jurigmidence, p. 29%

Preyer

2 PRINCIPLES OF ISLAMIC JURISPRUDE Qiyiis (Analogical Reasoning) 3
40, hah no, 3244; Masa, Abkilm, 4 '
Aghmnies, Mfubom Y
ng: which into be applied to the new ca "
he wkm al-far amon nv . fbkim, VIL, gt: Abi Zab
Kalli, fm, p In we
GhaeAll, Mustayf’, 11, 87; Shawkand, Abad, reden Mak has b
Ibn Ruushd, Bidpal, 1, 45; A . 2
Y ats his wife.
18, Ghazal, Miata? Je wile her maintenunce but 4 required 10 obey him; finally, he muy be
19, Cf. AbG Zarah, Uril p. 1X4 ubjecte : See Ab0) Zahra 98
vofined Wo 0 ar" e's wile during her menstreation, which 1 avoided, ‘The text indicat
hawt, Ind. penstruation 10 be the ‘llah of in sh had, ppp 311-209) provides a
Armidt, thik, UL, 1969 shuustive list of the particles of a with their Mustroion he ¢ # the
4. Son Maz, kam, Viti ns Salih, 1, 42%, hadtth 00, 366 49. Abo Diwod, Sunan, Mf, 101K, adh no: 3983; Ghazdlt, Muoteh
Jn Maz, dey, VIE P f
Sha'bin, Us
T ant badivh reads: “If Khu f 1
- - Kalla we
Shawh '
n. Mb 47, hadith no. 920; Sha'bto, Usa, p Minky (Howard .
4 Gharall, Musinf It, 64; AbO Zahrab, Uyal, p. 194: Khas rm
Jo. Sha'bac Me Sh Abt Zabesh, Uialp 1
31. Aphid pomaien Tharian (6. Shawkdi, Ind. pp. 231-23; AbO Zahrah, Ul, 194
32 Bukhart, Sabih (Istanbul edn), 1H, 44 (Kini al-salam, hadith no 7. Ghai, Mustay, M1, $$: Khel “lim,
Py 13a) wr Prophet forbade the sale of an object which dos nt B. Abb Zahesh, Usa, p. 19s: Khall, ‘fim, p. 77
the cale but permutted salaw at an exception. Salam is vabd on condition tha aaa oe
1e of delivery i stipulated and that the parties are abl he conditions of th rae
wept 60. AbO Zahrah, Uni p. 195
syrcement.’ See abo Abdur Rahim, Jorispnudence, p. 14s Muslisn, Sai, p. 4, hadith no, 119% Ibm Hiaern,dbkibe, VI, $45
9). Shawn, fa Abd Zahrah, Liyah p. 18K 2 meer
$4. Note for example, Shswkant (Inhi, pp. 207-208) who has Usted rwentyfo : ; és
onditions for the ‘ilah whereas the Malik fbn Hayib has recorded only eleven teat tv N
4 al. LV, 44-45; Nowe, “Qi ara)
35. Khuall3, “fiw, 4; AbO Zaheah, Ul p. Ks 2
: 64, Shawn, fohid, p. 222; Ther Qayyie, Flim, 1, 17% Zuhayr,& ‘
Vb, Shawkiit, Jnhid, pp. 207-108; Khalaf, “lim, pp. 8-9 jpeg
37. Aba Zaheah, L ff om
cabal, CE, Be. 66, Yon Quyyim, Flam, 1, 197; Aba Zahra, Usa, p. 173; Khalaf ti, ps $4
VK. thn Rnb ab Bidayah, Hl, 2005 Tura, Tad, p. 24, -

67, Ghazall, Musteyf 11, 64; Shasibl, Mh

i, TL,

4 PRINCI OF ISLA RUDENCE ( Analogical Reasoning) 30s
Ibn Harm, th A f
6. Thm Hazara, VELL
4, Vi
Tid. Vi
i
id, VI
al,
J followin Hed in A r
pt. Aba Zahrah, Usa, p. 206
ay. thi
9. Bukhirt, Sabth (seanbul edn), 1. $1 (Ria a): Kho,
8. hn Harms, thai, VIII, 7¥¢ AbO Zahrah,
'
Abe Daw0d, Sunan (Hisar : fp Harm, Ihkdm, V
soe Zuhaye, U,V, $038 A pa

to. Abu Sulayman, Method

CE AbO Zahral, Ul p

103, Ghazal, Musas, I, 5

40. Shalabl, Figh alld

CHAPTER TEN

Revealed Laws Preceding the Shari‘ah
of Islam

In principle, all divinely revealed laws emanate from one and the

same source, namely, Almighty God and, as such, they convey a basic

mesage that is common to them all. The essence of belief in the

oneness of God and the need for divine authority and guidance to
reg

tute the common purpose and substance of all divine religions. This
essential unity is confirmed in more than one place in the Qur'an,
which proclaims in an address to the Holy Prophet
lished for you the same religion as that which He enjoined upon
Noah, and We revealed to you that which We enjoined on Abraham,
Moses and Jesus, namely, that you should remain steadfast in religion
and be not divided therein’ (al-Shori, 42:13)

a Lam gf silly Leg ae pny call ow» pS ¢
eA Lal Ol mses erty patel 4 Ley bey

ate human conduct and the values of morality and justice consti

He has estab-

PIPAT Ys

More specifically, in a reference to the Torah, the Qur’in confirms
its authority asa source of inspiration and guidance: “We revealed the
Torah in which there is guidance [sda] and light; and prophets who
submitted to God's will have judged the Jews by the standards
thereof (al-Ma’idah, 5:44),

Revealed Laws Preceding the Shariah of Islam 307

yt SH yyy cde gd al, ll LS pi Uy

Ic is thus observed that Mubammad, being one of the prophets, is
bound by the guidance that is found in the Torah. Further confirma-
tion of the basic harmony of the divinely revealed laws can be found
in the Qur’anic dyah which, in a reference to the previous prophets,
directs the Prophet of Islam to follow their guidance: ‘Those are the
ones to whom God has given guidance, so follow theit guidance
(al-An‘am 6:90)

Iss) paligad dit esas sith obs

Basing themselves on these and similar proclamations in the Qur'in,
the ‘ulama’ are unanimous that all the revealed religions are different
manifestations of an essential unity.’ This is, of course, not to say that
there are no differences between them. Since each one of the revealed
religions was addressed to different nations at different points of time,
they each have distinctive features that set them apart from the rest
In the area of halal and harim, for example, the rules that are laid
down by different religions are not identical. Similarly, in the sphere
of devotional practices and the rituals of worship, they differ from
one another even if the essence of worship is the same. The Shart"ah
of Islam has retained many of the previous laws, while it has in the
meantime abrogated or suspended others, For example, the law of
retaliation (gisds) and some of the hadd penalties that were prescribed
in the Torah have also been prescribed in the Qur'an.”

The general rule to be stated here is however that, notwithstand-
ing their validity in principle, laws that were revealed before the advent
‘of Islam are not applicable to the Muslims. This is especially so with
regard to the practical rules of Shariah, that is, the abkdm, in which the
Shariah of Islam is self-contained. The jurists are also in agreement
to the effect that the laws of the previous religions are not to be sought
in any source other than that of the Shari'ah of Islam itself. For the
rules of other religions do not constitute a binding proof as far as the
Muslims are concerned. The Sharf'ah, in other words, is the exclusive
source of all law for the Muslims

In view of the ambivalent character of the evidence on this subject,
however, the question arises as to the nature of the principle that is to
be upheld: whether to regard the laws preceding the Shariah of Islam
as valid unless they are specifically abrogated by the Sharah, or whether

308 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Revealed Laws Preceding the Shariah of Islam 309

egard them as basically nullified unless they are specifically upheld
In response to this, it is said that laws
previous scriptures but whic
ruling is found on them in the Qur’sn or the Sunnah, are not, accord
, applicable to the Muslims. The correct rule
regarding the enforcement of the laws of the previous revelations is
that they are not to be applied co the followers of Islam unless they
cifically upheld by the Shari'ah.

Once again, the question arises as to whether the foregoing stare-
ment is in harmony with the Qur'inic proclamations that were
quoted above. The general response given to this is that the Prophet

J were introduced in the

are not upheld by the Sharfah, and no

ing to general agseeme!

are

of Islam was ordered to follow the previous revelations as a source of
guidance only in regard to the essence of the faith, that is, belief in
God and monotheism, It has thus been pointed out that the word
Juda (guidance) in the second dyah, and hudahum (their guidance) in
the third dyah quoted above only mean tawhid, or belief in the
oneness of God, which is undoubtedly the norm in the Shariah of
Islam. Their guidance cannot be upheld in the face of clear evidence
that some of their laws have been abrogated, The reference is there

fore to that aspect of guidance that is common to both Islam and the
previous religions, namely fawhid. It has been further suggested that
the reference to ‘prophets’ in the second dyah above is confined, as
the text itself suggests, to the prophets of Band Isri'll, and the Prophet
Mubammad is not one of them.*

The Qur'an on many occasions refers to the rules of previous reve-
lations on specific issues, but the manner in which these references
occur is not uniform. The Qur'in alludes to such laws in the follow
ing three forms

(1) The Qur'an (or the Sunnah) may refer to a ruling of the previous
revelation and simultaneously make it obligatory on the Muslims, in
which case there remains no doubt that the ruling so upheld becomes
an integral part of the Sharfah of Islam, An example of this is the
Qur'inic text on the duty of fasting which provides: ‘O believers,
fasting is prescribed for you as it was prescribed for those who came
before you" (al-Bagarah, 2:183)

ST US plead Sle OS Nyel gpilt al U
Shs ox ctl le

To give a similar example in the Sunnah, which confirms the ruling

of a previous religion, we may refer to the hadith that makes sacrifice
by slaughtering animals lawful for Muslims. The believers are thus
instructed to "give sacrifice, for it is the tradition of your ancestor.
Abraham, peace be upon him’

ped ade etl al pSal de ai Lee

(2) The Qur'in or the Sunnah may refer to a ruling of the
Previous revelation but at the same time abrogate and suspend it, in
which case the ruling in question is to be abandoned and discon-
tinued. An example of this can be found in the Qur’in where a
reference is made to the prohibition of certain varieties of food to
the Jews, while at the same time the prohibitions are lifted from the
Muslims. The text thus provides: "And to the Jews We forbade every
animal having claws and of oxen and sheep, We forbade the fat
(al-An'am, 6:146)

BS py plo 63 SS Lam lyale opill ley
Lage pe pple Le > rally

The second portion of this text clearly removes the prohibitions that
were imposed on the Jews. For 3 similar example in the Sunnah, we
muy refer to the hadith concerning the legality of spoils of war where
the Prophet has proclaimed: ‘Taking booty has been made lawful to
me, but it was not lawful to anyone before me,"*

Pd op tod JE dy pttall J cbt
Likewise, the expiation (kaffirah) for sins was not acceptable under
the Torah; and when a garment became unclean, the unclean portion
had to be cut out according to the rules of Judaism. But these restric-
tions were lifted so that the Shariah of Islam validated expiation for
sins, and clothes can be cleaned by merely washing them with clean
water.”

(3)The Qur'an or the Sunnah may refer to a ruling of a previous
revelation without clarifying the position as to whether it should be
abandoned or upheld. Unlike the first two eventualities, on which
there is little disagreement among jurists, the present situation has
given rise to wider differences of opinion. To give an example, we
read in the Qur'an, in a reference to the law of retaliation that was

310 PRINCIPLES OF ISLAMIC JURISPRUDENCE

enacted in the Torah: “We ordained therein for them life for life, eye
for eye, nose for nose, tooth for tooth and wounds equal for equal”
al-Ma'idah, 5-48).

Vy cull cally nil ntl OF Ug pple LS y
lad cy tly cel gotly ON OSM y GEL

Here there is no clarification as to whether the same law has to be
observed by the Muslims. In yet another passage in the same sira the
Qur'ln stresses the enormity of murder in the following terms: "We
ordained for the children of Israel that anyone who slew a person,
unless it be for murder of mischief in the land, it would be as if he
slew the whole of mankind’ (al-M3'idah, 4:32).

shad SF aid i Ls I oy 0h led got Ge ES
lee (dl J IG SI

Once again, this dyah narrates a law of a previous revelation but does
not specify whether this also constitutes a part of the Shari'ah of
Islam. The majority of Hanafl, Maliki and Hanbalt jurists as well
4s some Shifi‘t ones have held the view that the foregoing is a part
of the Sharf ah of Islam, and the mere fact that the Qur'in refers to
it is sufficient to make the law of retaliation binding on the Muslims.
For the Lawgiver spoke of the law of the Torah to the Muslims and
there is nothing in the Shari‘ah of Islam either to abrogate it or to
warrant a departure from it, This is the law of God, which He
narrated to us for purposes of adherence, It is on the basis of this
conclusion that the Hanafls have validated the execution of a Muslim
for murdering a non-Muslim (ie. a dhimmi, and a man for
murdering a woman, as they all Gill within the meaning of the
Qur'inic phrase ‘life for life’.' There are some variant opinions on
this, but even those who disagree with the Hanafi approach to this
issue subseribe to the same principle that they find enunciated
elsewhere in the Qur'an. In particular, two dydt have been quoted,
which proclaim, ‘And the punishment of an evil is an evil like it’
(al-Shara, 42:40);

Uplie ater tte lyr

Revealed Laws Preceding the Sharf‘ah of Islam 311

and “Whoever acts aggressively against you, inflict injury on him
according to the injury he has inflicted on you, and keep your duty
to God (al-Bagarah, 2:194)

SAE be fee ale I piceld Sule scel pad
1) pS

It is thus concluded that these ayar provide sufficient evidence in
support of the law of retaliation even without any reference to
previous revelations

The majority of the Shafi'ls, the Ash‘arites and the Mu‘tazilah have
maintained the view that since Islam abrogated the previous laws,
they are no longer applicable to the Muslims; and hence these laws do
not constitute a part of the Sharf ah of Islam unless they are specifically
validated and confirmed. They maintain that the Shar'ah norm
regarding the laws of the previous religions is "particularity’ (Jehusiis),
which means that they are followed only when specifically upheld;
whereas the norm with regard to the Shar ah itselfis generality (‘wmidm)
in that it is generally applied as it has abrogated all the previous scrip-
tures.” This restriction is necessitated in view of the fact that the
previous religions have not been correctly transmitted to us and have
undergone considerable distortion."° The proponents of this view have
quoted in support the Quranic text which declares, in a reference to
different nations and communities: ‘For every one of you We have
ordained a divine law and an open road’ (al-Ma'idah, $:48)

Lelginy Ae Sue Lew JS

Thus it is suggested that every nation has a Sharfah of its own, and
therefore the laws that were revealed before Islam are not binding on
this wmmah. Further evidence for this view has been sought in the
hadith of Mu‘adh ibn Jabal which indicates only three sources for the
Sharf‘ah, namely the Qur'in, the Sunnah and ijtihdd.!' The fact that
this hadith has made no reference to previous revelations must mean
that they are not a source of law for the followers of Islam. This last
point has, however, been disputed in that when Mu‘adh referred to
the Qur'in, it was sufficient, as the Qur'an itself contains numerous
references to other revealed scriptures. Furthermore it is well-known
that the Prophet did not resort to the Torah and Injil in order to find
the rulings of particular issues, especially at times when he postponed

LAMIC JURISPRUDENCE

312 PRINCIPLES O

in anticipat

imply that the Proj

on his own communit

able to its ¢

Shariah of Islam only ab agre
ings. The Qur'an, on th
and, whenever a rulir

Finally, it may be added, as Aba Zahrah has poin
ment among jurists on the authorit previous
revelation tle practical consequence, as the Shariah of Islam

s generally self-contained and its laws are clearly ider Witt
regard to retaliation, for example, notwithstanding the d cos of
opinion amor as to the precise import of the Qur

references to this subject, the issue is resolved, once and for all, by

the Sunnah which contains clear instructions on retaliation and leaves

no doubt that it is an integral part of the Shart‘ah of Islam.

1. AbO Zabrah, Uni, po agt; Qasim, Usa, p. vy

Abo Zahrah, Ul, p. 243; Badirin tal, p
J. Backean, Uaah p. 234; fone, Adil, p, 9
4: Ghazal, Mustayf, I, 134: AbO Zabrah, Ubi, p. 2 Adil, p. 5
Tabrtsl, Mishhit, 1, 460, heduh no. 1476 Badrin, Unah, p. 23
6, Muslien, Subih, p. 304, hadith no. 1497; Badrin, Usil, p. 234
Khallif, “Zim, p. ys; lsd, Adillah, p. 91

§. Khallaf, “tim, p. 94s Shaler, anton, p, 489% Badin, L
9. Sh

whint, Imhad, p, 340; Shalit, a-biden, p. 4g; Baden, Ua, p. 236
10, Abdur Rabirn. Jurypmademe, 30

1h, AbG Diw0d, Sanam (Hasan's traen), Il, ro19, hadith no. 3985

12, Ghasill, Miatay®, 1, 233, The only exception that is cited in this connection is
when the Prophet referred wo the Torah on the stoning of Jews for adultery. But this
was only t0 show, at Ghai explains, that stoning (ngim) was not against their religion,
and nor because the Prophet regarded the Torah at a source of law

1H Khallif “Ulm, p. 94,
14. Abo Zahral, Up, p

CHAPTER ELEVEN

The Fatwa of a Companion

The Sunni ‘ulamd’ are in agreement that the consensus (jimi) of the
Companions of the Prophet is a binding proof, and represents the
most authoritative form of ijma'. The question arises, however, as to
whether the saying or fatwi of a single Companion should also be
recognised as a proof and given precedence over evidences such as
qiys, or the faneds of other mujtahids. A number of leading jurists from
various schools have answered this question in the affirmative, and have
held the view that the fatwa of a Companion is a proof (ujjali) that
must be followed. Their argument is that following the demise of the
Prophet, the leadership of the Muslim community fell upon their
shoulders, and a number of learned Companions, with their intimate
knowledge of the Qur'in and the teachings of the Prophet, were able
to formulate fatwis and issue decisions on a wide range of issues, The
direct access to the Prophet that the Companions enjoyed during his
lifetime, and their knowledge of the problems and circumstances
surrounding the revelation of the Qur'in, known as the ashab al-nuxal,
put them in a unique position to formulate ijtihdd and wo issue faruiis
‘on the problems they encountered. Some ‘ulama’ and transmitters of
hadith have even equated the fatwt of a Companion with the Sunnah
of the Prophet. The most learned Companions, especially the four
Rightly-Guided Caliphs, are particularly noted for their contributions
and the impact they made in the determination of the detailed rules
of figh regarding the issues that confronted them.’ ‘This is perhaps
attested by the fact that the views of the Companions were occasion-
ally upheld and confirmed by the Qur'an. Reference may be made
in this context to the Qur’Sntic dyah that was revealed concerning the

314 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Fatwa ofa Companion 315

treatment that was to be accorded to the prisoners of war following
the battle of Badr. This dyah (al-Anfil, 8:67) is known to have con-
firmed the view that ‘Umar ibn al-Khattab had earlier expressed on
the issue The question arises, nevertheless, as to whether the fatud of
a Companion should be regarded as a proof of Sharf‘ah or a mere ijtihitd
that may or may not be accepted by the subsequent generations of
mujtahidan and the rest of the community as a whole, No uniform
response has been given to this question but, befiare we attempt to
explore the different responses that the ‘ulama’ have given, it will be
useful to identify who exactly a Companion is

According to the majority
Prophet while believing in him, even for a moment, and died as a
believer, is a Companion (jabdbi) regardless of whether he or she
narrated any hadith trom the Prophet or not. Others have held that the
very word sahdbt, which derives from subbah, that is ‘companionship’,
implies continuity of contact with the Prophet and narration of hadith
from him. It is thus maintained that one or the other of these
criteria, namely prolonged company, or frequent narration of hadith,
must be fulfilled in order to qualify a person as a sahdbi. Some
observers have made a reference to custom (‘uff) in determining the
duration of contact with the Prophet which may qualify a Companion,
This criterion would, in tum, overrule some of the variant views to
the effect that a sabdbi is a person who has kept the company of
the Prophet for specified periods such as one oF two years, or that
he participated with the Prophet in at least one of the battles.*
Bur notwithstanding the literal implications of the word ‘sabdbi", the
majority view is to be preferred, namely that continuity or duration
of contact with the Prophet is not a requirement. Some ‘wlama’ have
held that the encounter with the Prophet must have occurred at a
time when the person had attained the age of majority, but this too
is a weak opinion as it would exclude many who met the Prophet
and narrated hadith from him and attained the age of majority only
after his death. Similarly, actual eye-witnessing is not required, as
there were persons among the Companions, like Ibn Uram Maktiim,
who were blind but were still regarded as sahabi.

The fact of being a Companion may be established by means of
continuous testimony, or tausitur, which is the case with regard to the
most prominent Companions such as the klilafi’ rashidiin and many
others. The status of sahabi may even be established by a reputation
that falls short of amounting to tawitur, Similarly, it may be established
by the affirmation of another well-known Companion. According

umbiir) of ‘ulama’, anyone who met the

to some ‘wlama’, including al-Bagillini, we may also accept the
Companions own affirmation in evidence, as they are all deemed to
be upright (‘udiil), and this precludes the attmibution of lying to them.
There is, however, a difference of opinion on this point. The preferred
view is that reference should be made to corroborating evidence,
which may affirm or refute a person's claim concerning himself. This
precaution is taken with a view to preventing false allegations and the
admittance of self-styled individuals into the ranks of the Companions.’

The saying of a Companion, referred to both as qawl al-sabibi and
fatwa al-sahabt, normally means an opinion that the Companion had
arrived at by way of ijtihdd. It may be a saying, a considered opinion
(fatwa) or a judicial decision that the Companion had taken on a
matter in che absence of « ruling in the Qur'in, Sunnah and ijma’
For in the face of a ruling in these sources, the fatwa of a Companion
would not be the first authority on that matter. If the farwit is related
to the Qur’in and Sunnah, then it must be on a point that is not
self-evident in the source, There would, in other words, be a gap in
our understanding of the matter at issue had the Companion not
expressed an opinion on it.®

As stated earlier, there is no disagreement among the jurists on
the fact that the saying of a Companion is a proof thar commands
obedience when it is not opposed by other Companions. Rulings on
which the Companions were known to be in agreement are bind-
ing. An example of this is the grandmother's share of one-sixth in
inheritance on which the Companions have agreed, and it represents
their authoritative jimi, The ‘wma’ are, however, in disagreement
with regard to rulings that are based on opinion (ra’y) and ijrihid, and
in regard to matters on which the Companions differed among
themselves.’

‘There is general agreement among the ‘ulama’ of usiil on the point
that the ruling of one Companion is not a binding proof over another,
regardless of whether the ruling in question was issued by one of the
caliphs, a judge or a leading mujtakid among their number, for the
Companions were allowed to disagree with one another in matters
of ijtihad, Had the ruling of one Companion been a proof over
another, disagreement among them would not have been tolerated.
But as already noted, the ‘ulama' of usiil have differed as to whether
the ruling of a Companion constitutes a proof as regards the successors
(sabi'an) and the succeeding generations of mujtahids.* There are three
views on this, which may be summarised as follows:

(1) That the fatwa of a Companion is a proof absolutely, and takes

316 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Fatwa of a Companion 317

priority over giyds regardless of whether it is in agreement with the
giyas in question or otherwise, This is the view of Imam Malik, one
of the two views of Imam Shafi‘, one of the two views of Imam
Abmad ibn Hanbal and of some Hanafl jurists. The proponents of
this view have referred to the Qur’inic text which provides in a
reference to the Companions: “The first and foremost among the
Emigrants and Helpers and those who followed them in good deeds,
God is well-pleased with them, as they are with Him’ (al-Tawbah,

9:100)
Aral cally Ley cx pled op OssMI Opty
He Nyy y ge dil poy Oley

In this text, God has praised "those who followed the Companions
It is suggested that this manner of praise for those who followed the
opinion and judgment of the Companions warrants the conclusion
that everyone should do the same. The fanwi of a sahdbi, in other
words, is a proof of Shari'ah. Another Que'anic dyah that is quoted
by the proponents of this view also occurs in the form of a commen:
dation, as it reads in an address to the Companions: "You are the best
community that has been raised for mankind; you enjoin right and
you forbid evil’ (Al ‘Imrin, 52110)

By pl dy pb A om pl al pe
Sl x Ones

Their active and rigorous involvement in the propagation of Islam
under the leadership of the Prophet is the main feature of the amr
6i'lema‘ nif (enjoining right) that the Companions pursued, The Qur'in
praises them as ‘the best community’ and as such their example
commands authority and respect.’ It has, however, been suggested
that the Qur'’nic references to the Companions are all in the plural,
which implies that their individual views do not necewanily constitute
2 proof. But in response to this, it is argued that the Qur'an estab-
lishes their uprightness (‘addlah) as individuals, and those who follow
them in good deeds have been praised because they followed their
opinion and judgement both as individuals and groups. It is further
pointed out that those who followed the Companions are praised
because they followed the personal opinion of the Companions, and

not because the latter themselves followed the Qur'in and Sunnah
If this were to be the case, then the Qur’Anic praise would be of no
special significance as it would apply to everyone who followed the
Qur'dn and Sunnah, whether a Companion or otherwise. If there is
any point, in other words, in praising those who followed the

Companions, then it must be because they followed the personal views
of the Companions. It is thus concluded that following the fanua of
the Companions is obligatory, otherwise the Qur’in would not praise
those who followed it in such terms.” The proponents of this view
have also referred to several hadith, one of which provides: ‘My
Companions are like stars; whoever you follow will lead you to the
right path.”

seal patch egll: pl gle!

Another badith that is also quoted frequently in this context reads
“Honour my Companions, for they are the best among you, and then
those who follow them and then the next generation, and then lying
will proliferate after that."”"

hal ell Fe pS ale pAlb glad ye ST
PIS lin Fc pgle cell @

It is thus argued that according to these bidith, following the way of
the Companions is equated with correct guidance, which imphes that
their sayings, teachings and fatwid constitute a proof that commands
adherence,

It is, however, contended that these hadith refer to the dignified
status of the Companions in general, and are not categorical to the
effect that their decisions must be followed. In addition, since these
hadith are conveyed in absolute terms in that they identify all the
Companions as a source of guidance, it is pomsible that the Prophet had
meant only those who transmitted hadith and disseminated Prophetic
teachings, in which case the reference would be to the authonity of
the Prophet himself. The Companions in this sense would be viewed
as mere transmitters and propagators of the Sunnah of the Prophet.'*

Furthermore, the foregoing references to the Companions, as
al-Ghazali points out, are in the nature of praise, which indicates their
piety and propriety of conduct in the eyes of God, but does not
render adherence to their views an obligation. Al-Ghaziil also quotes

318 PRINCIPLES OF ISLAMIC JURISPRUDENCE

The Fatwa of a Companion 319

a number of other hadith in which the Prophet praises individual
Companions by name, each of which consists of commendation and
praise; they do not necessarily mean that the sayings of those

Companions are a binding proof (hujjah)
(2) The second view is that the ij
proof and does not bind the succeeding generations of mujtahidiin or
anyone else. This view is held by the Ash‘arites, the Mu‘tazilah, Imam
Abmad ibn Hanbal (according to one of his two views), and the
Hanafi jurist Abd al-Hasan al-Karkhi.* The proponents of this view
have quoted in support the Qur'linic dyah (al-Hashr, s9:2) which

d of a Companion is not a

states: ‘Consider, © you who have vision.
jhe: Ji U lye

It is argued that this ayah makes ijrihdd the obligation of everyone
who is competent to exercise it, and makes no distinction between
the mujtahid who is a Companion of anyone else, What is obligatory
is ijtihad itself, not adhering to the ijtihild of anyone in particular. This
Ayah also indicates that the mujtahid must rely directly on the sources
and not imitate anyone, including the Companions, The proponents
of this view also refer to the ijma of the Companions, referred to
above, to the effect that the views of one mujtahid among them did
not bind the rest of the Companions." Al-Ghazill and al-Amidi both
consider this to be the preferred view, saying that those who have
held otherwise have resorted to evidence that is generally weak
Al-Shawkint has also held that the fatwd of a Companion is not a
proof, as he explains that the wnmuh 1s required to follow the Qur'an
and Sunnah, ‘The Shariah only renders the Sunnah of the Prophet
binding on the believers, and no other individual, whether a
Companion or otherwise, has been accorded a status similar to that
of the Prophet."* Ab@ Zahrah has, however, criticised al-Shawkint's
conclusion, and explains that when we say that the saying of a
Companion is an authoritative proof, it does not mean that we create
a rival to the Prophet. On the contrary, the Companions were most
diligent in observing the Qur’in and Sunnah, and it is because of this
and their closeness to the Prophet that their fatui carries greater
authority than that of the generality of other mujtahidin."?

(3) ‘The third view, which is attributed to Abo Hanifah, is that the
ruling of the Companion is a proof when it is in conflict with giyas
but not when it agrees with giyi. The explanation for this is that when
the ruling of a sahabr conflicts with giyas, it is usually for a reason,

and the fact that the Companion has given a ruling against it is an
indication of the weakness of the giyiis; hence the view of the
Companion is to be preferred. In the event where the ruling of the
Companion agrees with giyis, it merely concurs with a proof on
which the giyds is founded in the first place. The ruling of the
Companion is therefore not a separate authority."*

There is yet another view which maintains that only the rulings of
the four Rightly-Guided Caliphs command authority. This view quotes
in support the hadith in which the Prophet ordered the believers:
“You are to follow my Sunnah and the Sunnah of the khulafi? rashidan
after me’,

= Se op caktl clilbl dey ey Kile

This is even further narrowed down, according to another hadtth, to
include the first wo caliphs only, The hadith in question reads
“Among those who succeed me, follow Abd Bakr and ‘Umar’

wey Sah sae oy silly bys

The authenticity of this second hadith has, however, been called into
question, and in any case, it is suggested that the purpose of these
hadith is to merely praise the loyalty and devotion of these luminaries
of Islam, and to commend their excellence of conduct."”

Imam Shaft is on record as having stated that he followed the

fatwst of Companion in the absence of a ruling in the Qur'an, Sunnah

and ijmd'. Al-Shifi'’s view on this point is, however, somewhat
ambivalent, which is perhaps why it has been variously interpreted
by the jurists. In a conversation with al-Rabt’, al-Shafi'l stated: ‘We
find that the ‘ulama” have sometimes followed the fad of a
Companion and have abandoned it at other times; and even those
who have followed it are not consistent in doing s0.” At this point the
interlocutor asks the Imam, ‘What should 1 turn to, then?’ To this
al-Shafi'l replies: ‘I follow the ruling of the Companion when I find

nothing in the Qur'an, Sunmah or ijmd’, or anything which carries
through the implications of these sources.’ Al-Shafi'l has further
stated that he prefers the rulings of the first three caliphs over those
of the other Companions, but that when the Companions are in
disagreement, we should look into their reasons and ako try to
ascertain the view that might have been adopted by the majority of
the Companions. Furthermore, when the ruling of the Companion

}20 PRINCIPLES OF ISLAMIC JURISPRUDENCE

is in agreement with qiyds, chen that qiyds, according to al-Shafi'l, is
given priority over a variant giyas which is not so supported.”

Imam Abi Hanifah is also on record as having said, “When I find
nothing in the Book of God and the Sunnah of the Prophet, | resort
to the saying of the Companions, | may follow the ruling which
appeals to me and abandon that which does not, but 1 do not
abandon their views altogether and do not give preference to others
over them.’ It thus appears that Abd Hanifah would give priority to
the ruling of a Companion over qiyds, and although he does not
consider it a binding proof, it is obvious that he regards the farwi of
a sahabl to be preferable to the ijtihdd of others.”

Imam Abmad ibn Hanbal has distinguished the farwils of
Companions into two types, one being a fatwa that is not opposed by
any other Companion, or where no variant ijtihdd has been advanced
on the same issue. Ibn Hanbal regards this variety of fan as authori~
tative. An example of this is the admissibility of the testimony of
slaves, on which the Imam has followed the fanwd of the Companion,
Anas ibn Malik. Ibn Hanbal is quoted to the effect that he had not
known of anyone who rejected the testimony of a slave; it is therefore
admissible, The second variety of faruil that Ibn Hanbal distinguishes
is one on which the Companions disagreed, and issued two or three
different rulings concerning the same problem. In this situation, Imam
Ibn Hanbal considers them all to be valid and equally authoritative,
unless is known that the kiulafa" rishidin adopted one in preference
to the others, in which case the Imam would do likewise. An
example of such disagreement is the case of the allotment of a share
in inheritance to full brothers during the life of the father's father
According to Abd Bakr, the father's father in this case is accounted
like the father who would in turn exclude the full brothers altogether,
Zayd ibn Thabit, on the other hand, counted the father’s father as
one of the brothers and would give him a minimum of one-third,
whereas ‘All ibn Abi Talib counted the father’s father as one of the
brothers whose entitlement must not be less than one-sixth, Imam
Tn Hanbal is reported to have accepted all the three views as equally
valid, for they each reflect the light and guidance that their authors
received from the Prophet, and they all menit priority over the ijtihiid
of others,"

The Hanbalt scholar Ibn Qayyim al-jawziyyah quotes Imam
al-Shafi't as having said, ‘It is better for us to follow the n'y of a
Companion rather than our own opinion.’ Ibn al-Qayyim accepts
this without reservation, and produces evidence in its support. He

The Fatwd ofa Companion 321

then continues to explain that the fanwd of a Companion may fall into
‘one of six categories. Firstly, it may be based on what the Companion
might have heard from the Prophet. Ibn al-Qayyim explains that the
Companions knew more about the teachings of the Prophet than
what has come down to us in the form of hadith narrated by the
Companions. Note, for example, that Aba Bakr al-Siddig transmitted
no more than one hundred hadith from the Prophet, notwithstand-
ing the fact thar he was deeply knowledgeable of the Surah and was
closely associated with the Prophet not only after the Prophetic
mission began, but even before this time, Secondly, the fant of a
Companion may be based on what he might have heard from a fellow
Companion. Thirdly, it may be based on his own understanding of
the Qur'an in such a way that the matter would not be obvious to us
had the Companion not issued a fanuii on it. Fourthly, the Companion
may have based his view on the collective agreement of the
Companions, although we have received it through one Companion
only. Fifthly, the fatwa of a Companion may be based on the leamed
opinion and general knowledge that he acquired through long-
standing association with the Prophet and fellow Companions. And
sixthly, the fatwa of a Companion may be based on an understand
ing of his that is not a result of direct observation but of information
that he received indirectly, and it is possible that his opinion is
incorrect, in which case his fatwil is not a proof and need not be
followed by others.”

And lastly, it will be noted that Imam Malik has not only upheld
the fanwas of Companions but has almost equated it with the Sunnah
of the Prophet, This is bome out by the fact, as already stated in our
discussion of the Sunnah, that in his Muwaya’, he has recorded
over 1,700 hadith, of which over half are the sayings and faruds of
Companions.

On a similar note, AbO Zahrah has reached the conclusion that the
four imams of jurisprudence have all, in principle, upheld and
followed the fatuils of Companions and all considered them to be
authoritative, although some of their followers have held views
which differ with those of their leading Imams. The author then
quotes al-Shawkini at some length to the effect that the farwi of a
Companion is not a proof. Having quoted al-Shawkini, Aba Zahrah
refutes his view by saying that it is ‘not free of exaggeration’. Aba
Zahrah then quotes Ibn Qayyim's view on this matter, which we
have already discussed, and supports it to the effect that the farwi of
a Companion is authoritative. But it is obvious from the tenor of his

RISPRUDENCE

PRINCIPLES OF ISLAMIC

t as a whole that the fatwa of
Although the leading

ent on the point that the fatwa

discussion and the nature of the subj

a Companion is a speculative proof only
imams of jurisprudence are in agreen

of a Compani¢

is a binding proof. Noneth
fatwa of a Companion to be a persuasive source of guidance

n is authoritative, none

1as categorically stated that

mams consider
n that

the four leading

it carries a measure of authority which merits careful consideration,

and commands priority over the ijtifidd of other mujtahidiin

NOTES

1. Khalaf ‘lim, pe 94; Mahmnannt,
3, Ghazal, Masta, 1, 43

4: Iumd'tl, Adilta,
awit, lhl, 5
2", Adilah, pp. 3-4
Khullaf,
% Amid, Mh

1V, tage Shawharnk Inia, ps 245,

o. Ibid. p. 152: ABO Zahwah, Ud, p. 16%; Zabayr, Ubi

ro. Iamd'tl, Ad
hy Tabetel, Milli, $11, 0
Arvid, tbkibm, JV, 1

9% hadith mo. 600% and tong; Ghani, Mustay®, f, 136

Zuhaye, Ul, 1V, 193: Intl, Adillah, p. a
1g, Ghaealt, Mietay, 1, 136-7

14. lund, Adillah, p. 194: Zubaye, Upal AV, 19
15, Ghaadh, Misia L995 Areil, Uke, WW. 149.

16, Shawhdal, lehdd, p. a4

17. Ab Zaheah, Ul, p. 17a; land's, Adillah, p. 299.

1H, Zubayr, Uvdl, TV, 94s Isms", Addl, ps9
19. thn Majah, Suman, 1. 97. dudith mo. g7; Ghagdlt, Mustayf

Wt
20, Shafi, Riilah, p. 26%; Shawkint, fwhad, p. 243; AbO Zaheah, Upal, p
24. AbO Zahral, Ul, po 17a

AbO Zahrah, ihn Hanh p. 387; leena'l, Adillsh, pp. 299-6
33. fbn Qayyim, Fam, 11, 191 Abo Zahrah, Und, pp. 170.

34, We have already given 1 brief outline of AbO Zaheah's critique of abShawkinit
25, Ab Zabrah, Uidl, p. aps

CHAPTER TWELVE

Istihsin (Equity in Islamic Law

The title { have chosen for this chapter draws an obvious parallel
between equity and istihudn which should be explained, for the (wo
are not identical, although they bear a close similanty to one another
*Equity’ is a Western legal concept that is grounded in the idea of
fairness and conscience, and derives legitimacy from a belief in natural
Fights or justice beyond positive law.’ Ishsdn in Islamic law, and
equity in Western law, are both inspired by the principle of fairness
and conscience, and both authorise departure from a rule of positive
law when its enforcement leads to unfair results, The main difference
between them is, however, to be sought in the overall reliance of
equity on the concept of natural law, and of istifsdn on the under.
lying values and principles of the Sharf ah. But this difference need
not be overemphasised if one bears in mind the convergence of values
between the Shari'ah and natural law, Notwithstanding their differ
ent approaches to the question of right and wrong, for example,
the values upheld by natural law and the divine law of Islam are sub-
stantially concurrent. Briefly, both assume that right and wrong are
not a matter of relative convenience for the individual, but derive
from an eternally valid standard that is ultimately independent of
human cognizance and adherence. But natural law differs from divine
law jin its assumption that right and wrong are inherent in nature.*
From an Islamic perspective, night and wrong are determined, not by
reference to the “nature of things’, but because God has determined
them as such, The Shari'ah is an embodiment of the will of God, the
Lord of the universe and the. supreme arbiter of values. If equity is
defined as a law of nature superior to all other legal rules, written or

324 PRINCIPLES OF ISLAMIC JURISPRUDENCE

otherwise, then this is obviously not what is meant by istihsan, Istihsan
does not recognise the superiority of any other law over the divine
revelation, and the solutions it offers are for the most part based on
principles that are upheld by divine law. Unlike equity, which is
founded on the recognition of a superior law, istibsin does not seek
to constitute an independent authority beyond the Sharf'ah. Lstilsin,
in other words, is an integral part of the Shariah, and differs with
equity in that the latter recognises a natural law apart from, and

ally superior to, positive law

While discussing the general theory of istihsdn, this chapter
also draws attention to two main issues concerning this subject
One of these is whether or not istihsdn is a form of analogical reason
ing: is it to be regarded as a variety of giyils or does it deserve to stand
as a principle of equity in its own right? The other issue to be raised
is the controversy over the validity of ithsdn, which started with
al-Shafi'’s unambiguous rejection of this principle. A glance at the
existing literature shows how the ‘lama’ are preoccupied with the
polemics of istihudn and have differed on almost every aspect of the
subject. 1 shall therefore start with a general characterisation of
istihsan, and then discuss the authority that is quoted in its support
This will be followed by a brief account of the related concepts of
ra'y and qiyis. ‘The discussion will end with an account of the contro~
versy over istihsin and a conclusion where | have cried to see the
issues in a fresh light, with a view to developing a perspective on
ists,

Gbuihsdn is an important branch of ijtihdd, and bas played a promi-
nent role in the adaptation of Islamic law to the changing needs of
society. It has provided Islamic law with the necessary means with
which to encourage flexibility and growth. Notwithstanding the
measure of juristic technicality that seems to have been injected into
an originally simple idea, istihsdn remains basically flexible, and can be
used for a variety of purposes, as will be discussed later. Yet because
of its essential flexibility, the jurists have discouraged an over-reliance
on istihsin lest it result in the suspension of the injunctions of the
Shar ah and become a means of circumventing its general principles.
Istihsan has thus become the subject of much controversy among our
jurists. Whereas the Hanafi, Maliki and Hanbalt jurists have validated
istihsin as a subsidiary source of law, the Shafi'l, Zahiri and Shit

lama’ have rejected it altogether and refused to give it any credence
in their formulation of the legal theory of usiil al-figh.*

Istihsan literally means "to approve or to deem something prefer-

Isihsim (Equity in Islamic Law) 325

able’, It is a derivation from hasuna, which means being good or
beautifull. In its juristic sense, istihsdn is 2 method of exercising
personal opinion in order to avoid any rigidity and unfairness that
might result from the literal enforcement of the existing law. ‘Juristic
preference’ isa fitting description of istihsdn, as it involves setting aside
an established analogy in favour of an alternative rali
the ideals of justice and public interest in a better way.

Enforcing the existing law may prove to be detrimental in certain
situations, and a departure from it may be the only way of attaining
a fair solution to a particular problem. The junst who resorts to
istihsdn may find the law to be cither too general or too specific and
inflexible. In both cases, istihsin may offer a means of avoiding hard-
ship and generating a solution that is harmonious with the higher
objectives of the Sharf'ah, It has been suggested that the ruling of the
second caliph, "Umar ibn al-Khaty3b, not to enforce the hadd penalry
of the amputation of the hand for theft during a widespread famine,
the ban he imposed on the ale of slave-mothers (ummahdt al-awlad),
and marriage with kitdbfyahs in certain cases, were all instances of
istihsdn;* for “Umar set aside the established law in these cases on
grounds of public interest, equity and justice.”

Lstihsdn essentially consists of giving priority to maylabah over the
ruling of qiyds in the event of a conflict arising berween them. This
is the essence of the MAlikt istibsdn, which consists of a recourse to
unrestricted reasoning (al-istidla al-mursal) that is given priority over
giyls, in the event where giyds violates mazlahah. The general objec~
tives of the Shart"ch must, in other words, take priority over the ruling
of a particular giyds.

‘The Hanafi jurist al-Sarakhsl (d. 483 ant) considers istihsan to be a
method of seeking facility and ease in legal injunctions. It involves a
departure from giyas in favour of a ruling that dispels hardship and
brings about ease to the people. "Avoidance of hardship (raf* al-hara/"
al-Sarakhst adds, ‘is a cardinal prineiple of religion which is enunci~
ated in the Qur’sn, where we read, in an address to the believers,
that "God intends facility for you, and He does not want to put you
in hardship” (al-Bagarah 2:185)"

path Se a Vy ral pS Bl tee

g that serves

Al-Sarakhst substantiates this further by quoting the hadith that
reads: “The best of your religion is that which brings ease to the

326 PRINCIPLES OF ISLAMIC JURISPRUDENCE

pod eT

Al-Khudari has rightly explained that in their search for solutions
to problems, the Companions and Successors resorted in the first
place to the Qur'an and the normative example of the Prophet. But
when they found no answer in these sources, they exercised their
personal opinion (ra'y), which they formulated in the light of the
general principles and objectives of the Shariah, This is illustrated,
for example, in the judgement of ‘Umar ibn al-Khayyib in the case
‘of Mubammad ibn Maslamah, The caliph was approached by Ibn
Maslamah's neighbour who asked for permission to extend a water
canal through Ibn Maslamah's property, and he was granted the request
on the ground that no harm was likely to come to Ibn Maslamab,
whereas extending a water canal was to the manifest benefit of his

neighbour."

It thus appears that istihadn is essentially a form of ra'y that gives
preference to the best of the vanious solutions that may exist for a
particular problem. In this sense, istihsdn is an integral part of Islamic
jurisprudence and indeed of many other areas of human knowledge.
Hence it is not surprising to note Imam Malik’s observation that
*istibsdn represents nine-tenths of human knowledge’. While quoting
this view, Abd Zahrah adds that when Malik made this remark, he
was apparently including the broad concept of maylabah within the
purview of istihsan, ‘for it is maslahah which accounts for the larger
part of the nine-tenths'.’

Evidence suggests that the Companions and Successor were not
literalists who would seek a specific authority in the revealed sources
for every legal opinion (fanwd) they issued. On the contrary, their
rulings were often based on their understanding of the general spirit
and purpose of the Shart“ah, and not necessarily on the narrow and
literal meaning of its principles. Istihsdn has been formulated in this
spirit; st is the antidote to literalism and takes a broad view of the law
which must serve, not frustrate, the ideals of fairness and justice.

To give an example, oral testimony is the standard form of evidence
in Islamic law on which a consensus (jjmd) can be claimed to exist.
This normally requires two upright (ad!) witnesses unless the law
provides otherwise (the proof of zind, for instance, requires four
witnesses). The number of witnesses required in these cases is
prescribed in the Qur'an, but the nule that testimony should be given
orally is determined by consensus. Muslim jurists have insisted on oral

Istihsn (Equity in Islamic Law) 327

testimony and have given it priority over other methods of proof,
including confesion and documentary evidence, In their view, the
direct and personal testimony of a witness who speaks before the
Judge with no intermediary is the most reliable means of discovering
the truth. The question arises, however, whether one should still insist
on oral testimony at a time when other methods such as photography,
sound recording, laboratory analyses, etc. offer at least equally, if not
more, reliable methods of establishing facts, Here we have, | think,
2 case for a recourse to istihsdn that would give preference to these
new and often more reliable means of proof. It would mean depart-
ing from the established rules of evidence in favour of an alternative
ruling that is justified in light of new circumstances. The rationale
of this istihsdn would be that the law requires evidence in order to
establish the truth, and not the oral testimony for its own sake, If this
is the real spirit of the law, then recourse to istihsdn would seem to
offer a better way to uphold that spint

The jurists are not in agreement on a precise definition for istibsin.
The Hanafls have, on the whole, adopted AbO al-Hasan al-Karkhi's
(4. 340 An) definition, which they consider accurate and compre-
hensive. Jstibsin is accordingly a principle that authorises departure
from an established precedent in favour of a different ruling for a
reason stronger than the one obtained in that precedent. While quot-
ing this, al-Sarakhs! adds that the precedent set aside by istihsin
normally consists of an established analogy that may be abandoned in
favour of a superior proof, that is, the Qur'an, the Sunnah, necessity
(arirah), or a stronger giyils.!*

The Hanball definition of istihsdn also secks to relate istihsiin closely
to the Qur'3n and the Sunnah, Thus according to tbn Taymiyyah,
istihsin is the abandonment of one legal norm (bukm) for another
that is considered better on the basis of the Qur'in, Sunnah or
consensus."

Notwithstanding the fact that the Maliki jurists lay greater empha-
sis on istislth (consideration of public interest) and are not significantly
concemed with istihsin, they have in principle validated istibsdn, But
the Malikis view istibsin as a broad doctrine, somewhat similar to
istislah, which is less stringently confined to the Qur'an and Sunnah
than the Hanaffs and Hanbalis would have it. Thus according to Tbn
al-‘Arabi, “istihsdn is to abandon exceptionally what is required by the
law because applying the existing law would lead to a departure from
some of its own objectives.’ fbn al-‘Arabt points out that the essence
of istihsdn is to act on ‘the stronger of two indications [dalilayn|’.

328 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Istihsiin (Equity in Islamic Law) 329

4

Whereas the majority of old to giyas when it
attacked on grounds of rigidity, Malik and Abd Hanifah departed
he general in giyi

ma’ wou

grounds of maglahah

from qiyils, or specified
and other indications.*
ferences in the terms of these definitior
clearer as our discussion proceeds. But it appears

m-

which

There are certain
will hopefilly becom
that departure from an exasting precedent on grc
pelling reasons is a feature of istisdm that is com
going definitions. According to Aba Zahrah, the Hanafls have adopted
al-Karkht's definition because it embraces «

nds of 1

on to all the fore-

¢ ewence of isnihsin in all

of its various forms. The essence of istihsiin, AbO Zahrah adds, is to

formulate a decision that sets aside an established analogy for a reason
that justifies such a departure and seeks to uphol
the Shart'ah. The departure to an alternative ruling in istihsdn may
be from an apparent analogy (giyds jalf) to a hidden analogy (giyik

khaff), of vo a ruling that is given in the nay

higher value of

i.e. the Qur’in or the
Sunnah), consensus, custom or public interest.

There is no direct authority for istibsdn, either in the Qur'an or in
the Sunnah, but the jurists have quoted both in their arguments for
it. The opponents of istihin have, on the other band, argued that
istihsdn amounts to a deviation from the principles of the Sharf ah. It
isan idle exercise in human preferences which only detracts from our
duty to rely exclusively on divine revelation. Both sides have quoted
the Qur’in and the Sunnah in support of their arguments. They were
able to do so partly because the Qur
on the whole open to various interpretations

The Hanafi jurists have mainly quoted two Quranic éyat, both of
which employ a derivation of the root word hasuna, anid enjoin the
believers to follow the best of what they hear and receive. They are
as follows:

nic dyit they have quoted are

Those who hater to the word and follo

the best of it (al-Zurnat, 99:18),

seen Oya sd Spill O yraies cull
And fallow the be of what bas been seat down to yos form your Lond
fl Zonsen. $95

ts ot SN SAL ol tasty

Qaut (lit. ‘word" or 'speech’) in the first dyah could mean either the

word of God, or any other speech. If it means the former, which ix
more likely, then the question arises as to whether one should distin
guish between the words of God which are alisan (the best) as oppoved
to those which are merely hasan (good). Some commentators have
suggested that the reference here is to a higher course of conduct
The Qur'an, in other words, distinguishes a superior course of conduct
from that which may be considered as ordinary. Punishing the wrong-
doer, for example, is the normal course enjoined by the Shari ah, but
forgiveness may at times be preferable (ahsan) and would thus
represent the higher course of conduct. The basic concept of istibsan,
in other words, can be seen in the Qur'in, although not in its
technical form, which the ‘ulamd of jurisprudence have developed."*

The following two hadith have also been quoted in support of
dstihsdn.

What the Muslims deem to be good is good in the sight of God.

ara il ie ggb Lene yall

io Kom albedo repeat Kar ™
PY be Vy ¥

Al-Sarakhst has elaborated in his Usil"? that listening to the words
of God and following them to the best of one’s ability can mean two
things to a jurist: firstly, to exert oneself by way of ijtihdd and the
best that n'y can achieve in understanding those parts of the Qur'3n
that have been left open to the exercise of ra'y. This is the case, for
example, with regard to determining the quantity of the gift of conso-
lation (muf‘ah), which the Qur'in itself has not specified but merely
stated that ‘a fair gift is due from those who wish to do what is right’
(al-Bagarab, 2:241).

cath gle Lie 3 y aly &

Mut ah should therefore be determined in line with the financial
capability and means at one's disposal, provided chat it conforms to
the Que ‘inic stipulation of bi'/ ma’ nif (fair, equitable), What is required
in this dyah, al-Sarakhsi added, is to exercise one's best judgement
that is based on the predominance of ra’y, which is what is involved
in istihsén, In another place the Qur'in lays down the obliganon in

330 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Istihsdn (Equity in Islamic Law) 331

respect of the maintenance and clothing of children, to be provided
by the father in manner that is decent and fair (bi'l-ma nif} (al-Bagarah,
2:233). But once again the text here does not specify quantities. There
is Kittle doubt, al-Sarakhsi added, about the substance of this variety of
istihsdn and the jurists are generally in agreement with it. I may hasten
to add here that this is, in fact, one of the two main varieties of istihsan

that al-Jassis (d. 370 att) had earlier identified as “the determination
of the quantitative aspects of textual rulings which is for the mujtahid
to specify’ (ithbat al-magddir al-mawkiilah ila ijtihadind). The other

variety of istihsdn that al-Jaysig has discussed concerns the abandon-
ment of qyds for an alternative ruling that is deemed to be preferable

The ayah under discussion, namely ‘to listen to the word and follow

the best of it’, al-Sarakhst wrote, could also be understood in reference
to the underlying proof of giyds. The proof (dalff) that conflicts with
an obvious giyas but is then discovered, after consideration and deeper
thought, to be the stronger evidence, and provides a better under-
standing of the Shart‘ah and a preferable course of action. This is what
lies at the centre of juristic istihsan, the intellectual effort, that is, to
distinguish between the stronger evidence and that which is merely

plausible, in reference to a particular hukm.

The critics of istifsin have argued, however, that none of the fore
going provide a definite authority in support of this doctrine. Regarding
the first of the two aya, for example, Amid! points out that it merely
praises those who fallow the best of what they hear. There is no
indication in this dyah to render adherence to the ‘best speech’ an
obligation. Nor does the second dyah bind one to search for the best
in revelation: if there is an injunction in the revealed sources, it will
bind the individual regardless of whether it is the best of the revela-
tion o otherwise." As for the Tradition, "What the Muslims deem
good is good in the sight of God’, both al-Ghavall and Amidi have
observed that, if anything, this provides the authority for consensus
(ijma").. There is nothing in this Tradition to suggest, and indeed it
would be arbitrary to say so, that what the Muslim individual deems
good is also good in the sight of God.” The critics of istipsiin have
further suggested that this doctrine was initially introduced by Hanafi
jurists in response to certain urgent situations. The Hanafis then tried
to justify themselves by quoting the Qur’in and the hadith ex-post
facto. The Qur'inic foundation of istiksdn, in other words, is weak,
and no explicit authority for it can be found in the Sunnah either.”

The historical origins of istilisdn can clearly be traced back to the
Companions, especially the decision of the Caliph ‘Umar ibn al-

Khaytib to postpone the prescribed punishment for theft during the
year of the famine, evidently on the grounds that applying the normal
rules under such conditions would fiil to obtain justice and may even
amount to oppression. The Caliph is also on record as having made
two different decisions concerning a case of inheritance, known as al-
mushtarakah (discussed below), the second of which set aside the normal
rules of inheritance and provided a solution that seemed equitable and
just under the circumstances. The facts of these decisions leaves little
doubt as to the historical origins of istihsdn, and yet we often read in
many reputable texts of usa! al-figh the attribution of istihsan to Imam
Hanifah and his disciple al-Shaybint. This may be understood to be
referring mainly to the technical development of istibudn. Although
‘Umar ibn al-Khaytab actually exercised the basic notion and idea
of istibsan, he probably did not use the term, nor did he attempt to
identify what he did as a proof or principle of usd al-figh

The word istihsdn appears to have been used, even before Imam
Hanifah, by an early Umayyad jurist, lyds ibn Mu" dwiyah (d. 122 An).
He is on record as having given the following instruction: ‘Use giyas
asa basis of judgement insofar as itis beneficial to the people, but when
it leads to undesirable results, chen use juristic preference (fa'stalsind].”
This clearly indicates that even before Ab Hantfah, istihsdn was known
as a principle by which to correct the irregularities of giyds, Ibn al=
Mugpffi’ (4. 137 AW), a state secretary of the early Abbasid period,
observed that discretion cannot be precluded in the adjudication of
mutters that arc not regulated in the textual sources, To attain justice
and faimess in accordance with the spirit of the Qur'in and the
Sunnah, it is necessary to exercise discretion. Ibn al-Mugaffi’ declared
that unreserved adherence to giyiis sometimes led to injustice and tt
‘was in such instances that a certain degree of flexibility was advisable:
*Qiyds is only an evidence that should be applied for good results ...
but when it leads to unfairness and injustice, one must abandon it;
for the objective of the law is not adherence to giyas as such, but to
judge according to what is good and appropriate."*"

I. Ra’y, Qiyiis and Istibsin

Istibsan is closely related to both ra'y and analogical reasoning, As
already stated, istihsdn usually involves a departure from qiyils in the
fintt place, and then the departure in question often means giving
preference to one giyds over another. Broadly speaking, qiyd is the

logical extension of an original ruling of the Qur'an, the Sunnah (or

ISLAMIC JURISPRUDENCE

332 PRINCIPLES OF

even jjmd) to a similar case for which no direct ruling can be found in
these sources. Qiyds in this way extends the natio logis of divine revela~
tion through the exercise of human reasoning, There is, in other words,
4 rationalist component ¢o qiyds which consists, in the most part, of
recourse to personal opinion (n'y). This is also true of istihsdn, which
relies even more heavily on n'y. It is this rationalist tendency verging
on personal opinion in both qiyiis and istihsdn that has been the main
target of criticism by al-Shif' and others. Thus the controversy
over the validity of istiksdn is esentially similar to that encountered
with regard to giyils.” However, because of its closer identity with
the Qur'ln and the Sunnah, giyds has gained wider acceptance as a
principle of jurisprudence. But even so, giyds and istibsdn are both
considered to be

expressive of rationalist tendencies in a system of
law that must keep a close identity with its ongins in divine revelation.
In the centre of this controversy lies the question of the validity or
otherwise of recourse to personal opinion (n'y) in the development
of the Sharf‘ah

From ari historical vantage point, it will be noted that in their
recourse {© personal opinion, the Companions were careful not to
exercise na'y at the expense of the Sunnah, This concem aver possible
violation of the Sunnah was greater in those days when the hadith had
not yet been compiled nor consolidated, With the temntorial expan-
sion of the Islamic domain under the Umayyads, and the dispersal of
jurists and Companions who were leamed in the hadith, direct access
to them became incteasingly difficult, Fear of solating the Sunnah led
the jurists to lay down certain rules which restricted free recourse
to ra'y. In order to be valid, the jurists ruled, ray must derive its
authority from the Shar ah principles that are enunciated in the Qur’in
and the Sunnah, This was the genesis of qiyds, which was initially a
disciplined form of ra'y. However, the exercise of this relatively liberal
form of ra'y during the formative stages of jurisprudence had already
led to considerable disagreement among the fugahd’, Those who called
for a close adherence to the hadith, namely the ahl al-hadith, mainly
resided in the holy cities of Mecea and Medina. The ahi al-hadith
regarded the Sunnah as supplementary to the Qur'an. They insisted
on strict adherence to the Sunnah, which, in their view, was a basic
requirement of the faith. Acceptance of the faith, they argued, must
be on a dogmatic basis without referring to the rationale or causes
(ta'fif) of its ordinances. They were, in other words, literalists who
denied the mujtahid the liberty to resort to the basic rationale of the
Shart ah rules, Whenever they failed to find explicit authority in the

Istihsain (Equity in Islamic Law

333

sources concerning 4 particular problem, they chose to remain silent
and avoided recourse to ra’y; this they considered to be the essence
of piety and unquestioning submission to God.

The fugaha’ of Iraq, on the other band, resorted more liberally to
personal opinion, which is why they are known as ah al-ra"y. In theit
view, the Shari“ah was in harmony with the dictates of reason, Hence
they had little hesitation in referring, during their search for solutions
to legal problems, to both the letter and the spirit of the Shariah
ordinances. The ah! al-ra’y are thos known for their frequent resort
to analogical reasoning and istihsin

As will be shown in the following pages, istihsdn reflects an attempt
on the part of the fugahd’ to regulate the free exercise of ra’y in matters
of law and religion. Any restrictions imposed on istihsan, such as that
which sought to turn istihsdn into a technical formula, were basically
designed to tilt the balance, in the continuous debate about the use
of ray versus literalism, in favour of the latter. Yet those who saw
istibsin as a predominantly rationalist doctrine had reservations about
subjecting it to restrictions that eroded its rationalist content and
rendered it a mere subdivision of giyas.

Although the classical theory of usa al-figh tacitly recognised that
in some cases analogical reasoning might entail injustice and that it
was then permissible to resort to istihsdn, this was, however, not tc
be regarded as “giving human reason a sovereign role’. Istihsdn and
maslahah were to be applied strictly in the absence of a specific ruling
in the Qur'an or the Sunnah.”®

Il. Qiyas Jalt, Qiyas Khaft and Istihsan

Qiyas jalt, or ‘obvious analogy’, is straightforward qiyids thar is easily
intelligible to the mind. An oft-quoted example of this is the analogy
between wine and another intoxicant, say 3 herbal drink, both of which
have in common the effective cause (“illah) of being intoxicating
Hence the prohibition concerning wine is analogically extended to
the intoxicant in question. But giyas khaft, or “hidden analogy’, isa
more subtle form of analogy in the sense that ic is not obvious to the
naked eye but is intelligible only through reflection and deeper
thought. Qiyds khaft, which is also called istihedn or qiyas mustahsan
(preferred qiyas) is stronger and more effective in repelling hardship
than qiyds jalf, presumably because i is arrived at not through the
superficial observation of similitudes, but through deeper reflection
and analysis,

334 PRINCIPLES OF ISLAMIG JURISPRUDENCE

Lstibsin (Equity in Islamic Law) 335

According to the majority of jurists, istibsdin consists of a departure
from qiyis jalt to giyis khaft. When the jurist is faced with a problem
for which no ruling can be found in a definitive text (nass), he may
search for a precedent and try to find a solution by means of analogy
His search for alternatives may reveal two different solutions, one of
which is based on an obvious analogy and the other on a hidden
analogy, If there is a conflict between the two, then the former must
be rejected in favour of the latter, For the hidden analogy is con-
sidered to be more effective, and therefore preferable to the obvious
analogy. This is one form of istiksdn. But there is another type of
istihsin which mainly consists of making an exception to a general
rule of the existing law when the jurist is convinced that justice and
equity will be better served by making such an exception. The jurist
might have reached this decision as a result of his personal ijtihiid, or
the exception may have already been authorised by any of the follow=
ing: najs, ima’, approved custom, necessity (danirah) of considerations
of public interest (majlabah)."* These will be illustrated in the examples
that follow. The examples chosen will also show more cleatly the role
that istihsan has played in the development of figh

(1) To give an example of istibsdn that consists of a departure from
divi jali to giyds khaff, it may be noted that under Hanafi law, the
uxgf (charitable endowment) of cultivated land includes the transfer
of all the ancillary rights that are attached to the property, such as the
right of water (hagg al-shurb), night of passage (hagg al-murir) and the
right of flow (bayg al-masif), even if these are not explicitly mentioned
in the instrument of wagf. This ruling is based on giyiis khaff (or istihsdn),
as I shall presently explain. It is a rule of the Islamic law of contract,
including the contract of sale, that the object of contract must be
clearly identitied in detail. What is not specified in the contract, in
other words, is not included therein. Now if we draw a direct
analogy (i.e. qiyis jalf) between sale and wagf— as both involve the
transfer of ownership — we must conclude that the attached rights can
only be included in the wagf if they are explicitly identified. It is,
however, argued that such an analogy would lead to inequitable
results: the wugf of cultivated lands, without its ancillary rights, would
frustrate the basic purpose of wagf, which is to facilitate the use of the
property for charitable purposes. To avoid hardship, a recourse to an
alternative analogy, namely to qiyds khaft, is therefore warranted. The
hidden analogy in this case is to draw a parallel, not with the contract
of sale, but with the contract of lease (ifirah). For both of these involve
a transfer of usufruct (intifi'). Since usuftuct is the essential purpose

of ijarah, this contract is valid, on the authority of a hadith, even with-
out a clear reference to the usufruct. This alternative analogy with
ijtrah would enable us to say that wagf can be validly concluded even
if it does not specify the attached rights to the property in detail

To give another example, supposing A buys a house in a single
transaction from B and C at a price of £40,000 payable in instalments
A pays the first instalment of £2,000 to B assuming that B will hand
‘over C’s portion to him. But before this happens, B loses the £2,000
and the question arises as to who should suffer the loss. By applying
giyas jali, B and C should share the loss. For B received the money
on behalf of the parmership and not for himself alone. Their position
in sharing the loss, in other words, is analogous to their status as
partners in the first place. Bur by applying istihsdn, only B, who received
the money, suffers the loss, for C, although a partner, was basically
under no obligation to obtain his portion of the £2,000 from B. It
was only his right/privilege, and he would be at the liberty to waive
it. C's portion of the 2,000 pounds would consequently become a
part of the remainder of the price (or the debt) that A owed to both.
Only B is therefore ¢o suffer the loss. The solution is based on the
subtle analogy that one who is under no obligation should not have
to pay any compensation either.

In a mortgage transaction, the mortgagee is liable to compensate
for the loss of the mortgaged property in his possesion, But in the case
where the creditor-mortgagee has absolved the debtor-mortgagor of
the obligation of repaying the loan, he is not held liable to compen-
sate for the loss of the mortgaged property. The reason is that a trustee
is not liable for the loss of the property in his custody unless he is at
fault or negligent. Supposing the above-mentioned creditor had not
waived his claim to the sum lent to the mortgagor, all he would have
to bear would be to absolve the mortgagor from the obligation of
repayment. Should one then punish him for his act of generosity
absolving the mortgagor of the obligation to repay the loan, of would
it be preferable to treat this case as analogous to that of a trustee?
Here isa subtle analogy that is resorted to in order to avoid the grave
injustice that would result from the strict application of obvious
analogy.

(a) The second variety of istiksdn consists of making an exception
toa general rule of the existing law, which is why some wnters have
called this type ‘exceptional istifsdn’ (istibsan istithna’s), as opposed to
‘analogical istihsin' (istihsdn qiyisf) ~ the latter consisting of a departure
from one qiyas to another.” Of these two, exceptional istihsiin is

336 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Istihsain (Equity in Islamic Law) 337

considered to be the stronger, for it derives support from another
recognised source, especially when this is the Qur'in or the Sunnale
The scholars of various schools are generally in agreement on the
validity of the istihsin for which authority can be found in the primary
sources, but they have disputed istihsdn that is based on qiyds khaft
alone. In fact the whole controversy over istihsdn focuses on this latter
form of istihsan2” But more to the point, the authority for an excep-
tional istihsan may be given either in the nays, or in one of the other
recognised proofs, namely consensus (ijmd’), necessity (daniiral), custom
(uf or “ddah) and public interest (maslahah). We shall illustrate each

of these separately, as follows

(a) An example of the exceptional istihsin that is based in the mags
of the Qur'an is its ruling on bequests to relatives: ‘It is preseribed
that when death approaches any of you, if he leaves any assets, that
he makes a bequest to parents and relatives’ (al-Baqarah 2:180)

Ayo gp M5 Of Cyl pSaol pam la} Sle
eA co

This Qur’dnic provision represents an exception to a general principle
of the Sharfah, namely that a bequest is basically not valid: since bequest
regulates the division of the estate after the death of the testator, the
latter is not allowed to accelerate this process, A bequest made during
the lifetime of the testator is thus tantamount to interference in the
rights of the heits after the testator’s death, which is unlawful
However, the Qur'an permits bequest as an exception to the general
rule, that is by way of an exceptional istiisdn. It sets aside the general
principle in favour of an exception which aims for a fair distribution
of wealth in the family, especially in cases where a relative is destitute
and yet is excluded from inheritance in the presence of other heirs
(b) Exceptional istihsin that is based on the Sunnah may be illustrated
with reference to the contract of ijdrah (lease of hire). According to
a general rule of the Shariah law of contract, an object that does not
exist at the time of contract may not be sold. However, ijirah has
been validated despite its being the sale of the usuffuct (ie. in exchange
for rent) which is usually non-existent at the moment the contract is
concluded. Analogy would thus invalidate ijanah, but istihsiin excep
tionally validates it on the authority of the Sunnah (and ijmi), proof
that are stronger than analogy and justify a departure from it.**
Similarly, the option of cancellation (khiyar al-sharf) represents an

exceptional istihsin that is authorised by the Sunnah. It is employed
when a person buys an object on condition that he may revoke the
contract within the next three days or so. This kind of stipulation
amounts to a departure from the general rule of the Shari'ah law of
contract, which is that a contract becomes binding upon its conclu
sion. An exception to this rule has however been made by way of
istihsin which is based on the hadith: “When you agree on the terms
of a sale, you may say: it is not binding and I have an option for three
days."

SyRIE Ys fib oul ba} pley ale St de ad
pul Be UA

(c) To illustrate exceptional istihsin that is authorised by ijma, we
may refer to fstignd’, of the contract for the manufacture of goods
Recourse to this form of istihsdn is made when someone places an
order with a craftsman for certain goods to be made at a price that 1s
determined at the time of the contract. Istibsan validates this transac»
tion despite the fact that the object of the contract is non-existent at
the time the order is placed. This form of istihsdn closely resembles
thar which is authorised by custom, as will later be discussed.”

(d) An example of exceptional istibsin that is based on necessity
(danirah) is the method adopted for the purification of polluted wells
Ifa well, or a pond for that matter, is contaminated by impure
substances, its water may not be used for ablution. It will be noted,
however, that the water in the well cannot be purified by removing
that part which is impure ~ and it cannot be poured out either, for
it is in continuous contact with the water which flows into the well
The solution has been found through istibsin, which provides that
contaminated wells can be purified by removing a certain number,
say a hundred, of buckets of water from the well (the exact number
is determined with reference to the type and intensity of pollution)
Istihsan in this case is validated by reason of necessity and prevention
of hardship to the people.””

In a similar vein, strict analogy requires that witnesses, in order
to be admissible, must in all cases be ‘adl, that is, upright and
irreproachable. For judicial decisions must be founded on truth, and
this is facilitated by the testimony of just witnesses. However, if the
di happens to be in a place where “ad! witnesses cannot be found,
then it is his duty, by virtue of istihsan, to admit witnesses who are

338 PRINCIPLES OF ISLAMIC JURISPRUDENCE

not totally reliable so that the rights of the people can be protected.*
Similarly, with regard to the qi, the general rule requires that he be
1 mujtahid, but a non-mujtalid may be appointed as a gadi where no
mujtahid can be found for this office

The Hanafi jurists have frequently resorted to this variety of istihsin
in the area of property law, especially regarding the unauthorised use
of the property of another person because of necessity and prevention
of harm. For example: (1) It is permissible for the father or the son,
in the event of one of them falling ill, to buy out of his property what

may be necessary, such as food and medicine, without obtaining prior
permission, (2) On a similar note, a travelling companion may spend
out of the property of his co-traveller who has fallen ill what may
be necessary to help the latter without his prior permission. (3) The
indigent father who is in need of financial support is normally not
allowed to interfere with the property of his adult son, in the absence
of the latter, simply because the father’s nght of guardianship termi-
nates upon the son's attainment of the legal age. Imam AbO Hanifah
has however held, by way of istihsdn, that the father may sell only the
moveable, but not the real, property of his adult son for his basic
needs. The two disciples of the Imam, namely AbO YOsuf and al~
Shaybini have, however, disagreed with their Imam. In all of these
examples the permission of the right-bearer is ken for granted on
account of necessity and maylahah

(¢) To illustrate exceptional istihsdn that is authorised by custom, we
may refer to the wagf of moveable goods. Since wagf, by definition,
is the endowment of property on a permanent basis, and moveable
goods are subject to destruction and loss, they are therefore not to be
assigned in uayf. This general rule has, however, been set aside by
the Hanafi jurists, who have validated the wagf of moveables such as
books, tools and weapons on grounds of its acceptance by popular
custom." Similarly, a strict analogy would require that the object of
sale be accurately defined and quantified. However, popular custom
has departed from this rule in the case of entry to public baths where
the users are charged a fixed price without any agreement on the
amount of water they use or the duration of their stay’ Another
example is bay’ alsta'dyt, or sale by way of ‘give and take’, where the
general rule that offer and acceptance must be verbally expressed is
not applied owing to customary practice.

(® And finally, to illustrate istihsan thatis founded on considerations
of public interest (maslahah) we may refer to the responsibility of a
trustee (amin) for the loss af the goods that he receives in his custody.

Istibsan (Equity in Islamic Law) 339

The general rule here is that the trustee is not responsible for loss or
damage to such property unless it can be attributed to his personal
fault or negligence (tagsi#). Hence a tailor, a shoemaker or a crafts-
man is not accountable for the loss of goods in his custody should
they be stolen or destroyed by fire. But the jurists, including Abo
Yasuf and al-Shaybin!, have set aside the general rule in this case and
have held, by way of istihsdn, the trustee to be responsible for such
losses, unless the loss in question is caused by a calamity, stich as fire
or flood, which is totally beyond his control, This istilsdn has been
justified on grounds of public interest so that trustees and tradesmen
may exercise greater cate in safeguarding people's property
For another example of maylehah-based istihsan, we refer to a case
of inheritance, known as al-mushtarakah (‘the apportioned’), which
took place during the time of the Caliph “Umar ibn al-Khaygab. A
woman died leaving behind a full brother and two half-brothers, her
mother and her husband. The normal rules of inheritance would
entitle the full brother to one-third, the husband to one-half, the
mother to one-sixth and nothing would be lett for the half-bothers
who are in the category of “ajahah (residuaries) and take a share only
after the recipients of Que’anic shares have taken theirs. The case was
brought to the attention of the Caliph who nuled by way of éstisdn
that the half-brothers should share the one-third with the full
brothers. A number of prominent Companions, including ‘AH ibn
‘Abbas and "Abd Allsh ibn Mas'dd, held the view that the normal
rules of inheritance should apply. Report also has i¢ that the Caliph
‘Umar too was initially persuaded to follow the normal rules until the
half-brothers protested and said: ‘Suppose that our father were a
donkey {himar), did we not still have the same mother as the deceased?"
= which is why the case is also known as al-himariyyah (‘the donkey’
case). It is said that ‘Ali's solution was based on giyas whereas 'Umar's
solution was based on istihsdn and this was deemed to be more
equitable and in harmony with considerations of maslahah,."

Ill. The Hanafi-Shifi'l Controversy over Istihsan

ALShafi't has raised serious objections against istihsdn, which he
considers to be a form of pleasure-secking (taladhdhudh wa-hausf) and
arbitrary law-making in religion’” A Muslim must obey God and
His Messenger at all times, and follow injunctions that are enshrined
in the clear texts (nusiis). Should there arise any problem or difference
of opinion, it must be resolved with reference to the Qur'an and the

340 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Lstibsin (Equity in Islamic Law) 341

Sunnah, in support of this, al-Shifi't quotes the Qur'anic nags in siira
al-Nisi’ (4:59): ‘Should you dispute over a matter among yourselves,
refer it to God and His Messenger, if you do believe in God and the

Last Day.”
oS A Spells Bl Sh op2.d eit pes Ob
PV psy de Ones

Al-Shifi'l continues on the same page: anyone who rules or gives a
fatwa on the basis of a nagy or on the basis of ijtihdd that relies on an
‘analogy to the nass has fulfilled his duty and has complied with the
command of the Lawgiver. But anyone who prefers that which
neither God nor His Messenger has commanded or approved, his
preference will be acceptable neither to God nor to the Prophet
Istihsan involves, according to al-Shifi'l, personal opinion, discretion
and the inclination of the individual jurist, an exercise that is not in
harmony with the Qur'inic ayah that reads: ‘Does man chink that he
will be left without guidance?” (al-Qiyimah, 75:36)

Ste De OF OLY) sil

Commentators are in agreement that sudd in this dyah means a state
‘of lawlessness in which the individual is not subject to any rules,
commands of prohibitions, With this meaning in mind, Imam Shafi'l
observes: if every judge and every mufii ruled according to their own
inclinations, one can imagine that self-indulgence and chaos would
afilict the life of the community. Unlike giyis, whose propriety can
be tested by the methodology to which it must conform, istihsdn is
not regulated as such. Since istihsdn consists neither of nasj nor of an
analogy to naj, it is ultra vires and must therefore be avoided.”

In response to this critique, the Hanafls have asserted that istifsdn
isnot an arbitrary exercise in personal preference. It is a form of qiyas
(viz, qiyds khaft), and is no less authoritative than giyas. Thus it is
implied that, contrary Co allegations of the Shifi' jurist, istihsim is not
an independent source of law, but a branch of giyds that has a firm
grounding in the Shari“ah. If this argument is accepted, it would imply
that istihsan must be subjected to the same rules that are applicable to
qiyds, and would therefore lose its status as a juristic principle in its
own right. The scope and flexibility of istihsin would consequently
be restricted as it would mean changing istihsan from a predominantly

equitable doctrine into a form of analogical reasoning. This would
confine istihsin only to matters on which a parallel ruling could be
found in the primary sources. Having said this, however, it is doubt-
fal whether istibsan is really just another form of qiyds

Abmad Hasan has observed that istilsin is more general than giyds
khafi, ax the former embraces a wider scope and can apply to matters
beyond the confines of the latter.” Aghnides has similarly held that
istibsin is a new principle which goes beyond the scope of qiyds,
whether or not this is openly admitted to be the case:

AbO Harish and hix eartion diciples did not consider iwtilndn a a kind of
giyls..nor did he we the word in any technical sense, Had that been the cae, like
$0 manty of his views, it would probably have been placed on record, The

tut he used the word tiihaln in its usual meaning namely, that of sbandoning
427 for an opinion thought to be more subservient 10 the social interest”

Aghnides goes on to suggest that when the Shifi'l jurists attacked
istihsdn on the grounds that it meant a setting aside of the revealed
texts, the disciples of Ab0 Hanifah felt themselves forced to show that
this was not the case. Hence they put forward the contention that
istibsiin was nothing but another kind of qiyis. According to another
observer, the attempt to bring istilisin within the sphere of giyis is
unjustified, for ‘it really lies outside of this narrow sphere and must
therefore be recognised as a special form of deduction’.”

Al-Ghazali has criticised istifsin on different grounds. He has
observed that the jurists of the Shifi'l school have recognised the
validity of istihsin that is based on an indication (dalif) from the Qur'an
or Sunnah, When there exists a dali! of this kind, then the case at hand
would be governed not by istihsiin but directly by the provision of
the Qur'an or Sunnah itself.*! Furthermore, al-Ghazili is critical of
Abo Hanifah for his departure, in a number of cases, from a sound
hadith in favour of giyds or istihsdn.*” Finally, al-Ghazall rejects istibsan
that is based on popular custom, for custom by itself is not a source
of law, He observes that approved customs are often justified with
reference, not to istihsdn, but to other proofs. While referring to the
example of entry to a public bath for a fixed price without quantify-
ing the consumption of water, al-Ghazali asks: ‘How is it known that
the community adopted this practice by virtue of istilsin? Is it not
trve that this was the custom during the time of the Prophet, in which
case it becomes a tacitly approved Sunnah [Sunnah tagrinyyah] so as
to prevent hardship to the people?”

Another Shafi‘t jurist, al-Amidi, has stated that notwithstanding his

342 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Istihsin (Equity in Islamic Law) 343

explicit denunciation of isnhsan, al-Shafi't himself resorted to istihsan:
AL-Shifitl has been quoted as having used a derivation of istihsan on
several occasions, including the ruling in which he said, ‘I approve
] of mut‘ah (gift of consolation) to be 3o dirhams’; and ‘I
¢ [astahsinu) of the proof of pre-emption [shuf"] to be three

[astabsi
appr
days’ (following the date when the sale of the property in question
»wledge of the claimant). Al-Amidi thus draws the
conclusion that “there is no disagreement on the essence of istih
between the two schools ly means chat their differ
ences amount to no more than semantic differences over words.

The Maliki jurist al-Shacibt has held that istibsdn does not mean
the pursuit of one’s desires; on the contrary, a jurist who understands
istihsdn has a profound understanding of the intention of the Lawgiver.
When the jurist discovers that a strict application of analogy to a new
problem leads to loss of maslahak and possibly to an evil (mafsadah),
he must set aside qiyas and resort to istilsan.*

While discussing the controversy over istihsin, another observer,
Shaykh al-Khudasi, writes that anyone who is familiar with the works
of the ‘wlama’ of jurisprudence would agree that AbO Hanifah and his
disciples are not alone in their reliance on istibsdn. All jurists have
resorted to éstihsdn in one form or another, and a reader of the vari-
‘ous juristic schools of thought is bound to come across opinions that
are founded on it.*

This view finds further support from Yosuf Masi, who has tersely
observed that juristic differences over istihuin essentially amount to
no more than arguments over words, for the fugahd’ of every major
school have invariably resorted to istihsdn in One form or another.”

If this is aceepted, then one naturally wonders as to the causes that
might explain the controversy in question. Al-Taftizini has observed
that neither of the two sides of the controversy over istihsdn have
understood one another, and that the whole debate is due to a mis-
understanding. Those who argue in favour of istihsdn have perceived
this principle differently to those who have argued against it. Had
istihsan been properly understood, al-TaftSzint adds, its basic validity
would never have been disputed.

Al-Taftizant’s assessment has been widely endorsed by modem
writers on the subject, including Khallaf, Ab Zahrah and YOsuf MGs.
In Khallif’s opinion, the essential validity of istihsan is undeniable, for
it enables a departure from the apparent or the general rule of law to
a variant ruling that warrants such a departure. Every judge and jurist
must consider the circumstances of an individual case, and occasion

came to the k

+ which obviot

ally decide not to apply a certain rule, or to make an exception, as
he considers this to be required by maslahah and justice. And lastly,
Abd Zahrah observes that “one exception apart, none of al-Shafi‘'s
criticisms are relevant to the Hanafi conception of istihsdn'. The one
exception that may bear out some of al-Shafi's criticisms is istihsn
that is authorised by eustom. For custom is not a recognised source
of law and is, in any case, not sufficiently authoritative to warrant a
departure from giyas.”

IV. Istihsdn and Particularisation (Takhsis)

Another controversy has arisen over whether or not istihsain is in the
nature of takhgis. There are two aspects to this discussion, one of
which addresses the question of whether istihsdn is tantamount to
specifying a general rule (hukm) of Shar ah, or a ruling of qiyas, in
connection with a certain issue; and the other is an extension of the
same point, but this time in reference to specifying the effective cause
(illah) and through it the bukm rather than specifying the hukm
directly without a particular reference to the ‘illah. The Malikis have
deseribed istihsain as acting on particular benefit (maslahah juziyyah)
vis-d-vis a general principle by way of making an exceptional conces-
sion. This process resembles that of takhyfs al~'umim, or specifying a
general text in order to uphold the spint and purpose of that text. By
resorting to istifsdn, in other words, we are basically concerned with
a better understanding of a general principle of Shari'ah and its proper
implementation with reference to particular issues. Both Imams Aba
Hanifah and Malik saw istihsdn as the case where the application of
giyis in a particular instance departed from sts own effective cause
While both Imams saw istihsan as a form of taklyts, che main difference
between their respective approaches may be said to be that Imam
Milik took a broader view of both taihsis and istihsin, by opening
up their scope to the requirements of maylahah, and specified a general
text by reference to maslahal. Imam Abd Hanifah would, on the
other band, do so if this was upheld by a Companion.’'

‘The Hanbalt scholar Ibn Taymiyyah saw istibsdn as a kind of partic-
ularisation of “illah where the cause of the original bukm— which is
being abandoned — is present but the hukm of that ‘illah is absent
due to an obstacle. According to Ibn Taymiyyah, when the ‘illah is
rational and when the mujtahid can understand it, then it may be
either completely rejected or modified so as to accommodate certain
new cases which can be distinguished from the original case. It is in

344 PRINCIPLES OF ISLAMIC JURISPRUDENCE

this way that Ibn Taymiyyah considered istihsin to be in the mature
‘of takhsis al-illah, either through the modification of the ‘illah or
through its total nullification.

The opponents of istihsdn have, on the other hand, asserted that
istiksan violates one of the basic norms of rationality and law by
isolating the ‘illah from its Jule, or when it makes an exception to
the ruling (jukm) of a case despite the presence of its effective cause
(illah). Stated simply, takhsis al-‘illah means the existence of a cause
and the absence or suspension of its relevant ruling due to an obstacle
The Hanafis have disagreed and replied that istihsdn is not in the
nature of takhsis al~‘illal; istihsan is a kind of giyds. When we apply
istiksan, the rule of law is established if the cause of that rule exists;
in the event that the cause does not exist, the rule too does not exist.
Sadr al-Sharf‘ah has categorically stated that istibsdn is not in the nature
of takhls al-illah, despite the assertion of many to the contrary. This
is because abandoning a giyds for a stronger evidence is not salhsiy ale
illah, Thus the absence of a hukm in the case of istibsin is precisely
due to the absence of an ‘illah, and not particularisation thereof, This
is illustrated by reference to the oft-quoted example of permissbility
for human consumption of the leftovers of birds of prey, as opposed
to the leftovers of predatory animals, which is prohibited, simply
because the ‘illah of its prohibition, namely eating or drinking with
the tongue, is present in the case of predators, but is absent in the
case of birds of prey. Qtyis in this case would extend the prohibition
from the case of predatory animals to birds of prey, but istihsdn would
exclude the latter from the scope of that prohibition because of the
absence of the effective cause.’ Al-Sarakhsi has strongly criticised
those who validated the particularisation of ‘illah. In his Upil, he wrote
a chapter bearing the title ‘Explaining the Corrupt View that Validates
Takhsis of the Shar't Causes ~ Fasl fi Baydin Fasad al-Quwt bi-Jawitz al-
Takhsis fi'l- lal al-Shar iyyah’ and said that the approved position of
our predecessors was that fakhsis al-‘illah was impermissible. Those who
validate this logical incongruity, Sarakhsi added, are saying, in effect,
that a hukm of Shari'ah may be applied to some cases and may be
suspended in other similar cases, while the ‘illah is present in both
cases, and what they say is totally corrupt and indefensible.**

Conclusion

The attempt to link istibsdn with giyds has involved tortuous reason-
ing which somehow remains less than convincing. One way to

Istiksan (Equity in Islamic Law) 345

resolve some of the juristic differences on this issue may be to go back
to the origin of istihsdn and recapture the meaning that was given to
it by AbG Hanifah and the early “wldma’ of jurisprudence. On this
point there is evidence to suggest that Aba) Hanifah (d, 150 an) did
not conceive of istifsin as an analogical form of reasoning, About half
a century later, when al-Shafi'l wrote his Risdlah and Kitab al-Umm,
there was still little sign of a link between istihsdn and giyds. Al-Shafi'l
is, im fact, completely silent on this point. Had al-Shifi'l (d. 204 aH)
known that istihsdn was a variety of qiyis, one can imagine that he
might have softened his stand with regard to it. Originally istihsan was
conceived in a wider and relatively simple form which was clase to
its literal meaning and free of the complexities that were subsequently
woven into it. One is here reminded of Imam Malik’s characteristic
statement that designates istihsin as nine-tenths of human knowledge,
a statement which grasps the true essence of istihsdn as a method of
finding better and more equitable alternatives to existing problems
both within and beyond the confines of analogical reasoning. Istihsiln
is basically antithetic to giyas and not a part of it. It enables the jurist
to escape from strict conformity to the rules of giyas when such
conformity is likely to lead to unfair results, fsthsdn was originally
formulated not as another variety of qiyds, but as a doctrine that
liberated the jurist from the strait-jacket of giyds, especially where
conformity to giyds clashed with the higher objectives of the Sharf‘ah,

It is well to remember that much of the juristic controversy over
istihsin developed under the pressure of conformity to the strict
requirements of the legal theory once it was finally formulated by
al-Sha6' and gradually accepted by others, The thrust of al-Shafi''s
effort in formulating the legal theory of the will was to define the
role of reason vis-d-vis the revelation. AJ-Shafi'l confined the scope
‘of human reasoning in law to analogy alone. In his well-known state-
ment concerning ijtihad and giyds, especially where al-Shifi'l con-
sidered the two to be synonymous, one hardly fails to notice the
attempt to confine the use of human reasoning to gis alone
*On all matters touching the life of a Muslim there is either a bind-
ing decision or an indication as to the right answer. If there is 3
decision, it should be followed; if there is no indication as to the right
answer, it should be sought by ijtihad, and Wjihad ix qiyas."” In this
statement, al-Shafi' reflected the dominant mood of his time. From
that point onward, any injection of rationalist principles into the legal
theory of the spi! had to seek justification through qiyids, which was
the only channel through which 2 measure of support could be

346 PRINCIPLES OF ISLAMIC JURISPRUDENCE

obtained for istiksdn, In order to justify istihsdn within the confines of
the legal theory, it was initially equated with giyas and eventually
came to be designated a sub-division of it.

The next issue over which the fugaha’ have disagreed is whether
an istihsan founded in the Qur'an, Sunnah or ijma should be called
istihsan at all. In cases where a hadith authorises departure from an
existing analogy in favour of an alternative ruling, then all that one
needs in order to authorise the departure in question is the hadith
itself. It would therefore seem redundant to apply the word istihsdn
to this form of departure from the rules of giyds. Whenever a ruling
can be found in the Qur'an (or the Sunnah), the jurist is obliged to
follow it and should, basically, have no choice of resorting to qiyils
or to istihsin, If the Qur'in provides the choice of an altemative
ruling that seems preferable, then the alternative in question is still a
Qur nic rule = noe istibsan,

It would appear that the fugaha’ initially used the term istihsdn close
to its literal sense, which is to *prefer’ or to deem something prefer
able, The literal meaning of istifisdhr was naturally free of the restrictions
that were later evolved by the fugaha’, A measure of confusion between
the literal and technical meanings of istihsdn probably existed ever
since it acquired a technical meaning in the usage of the jurists. This
distinction between the literal and juristic meanings of istihsdn might
help explain why some ‘wlama’ have applied istihsiin to the rulings of
the Qur'an, the Sunnah, and ijmd’. When we say that the Qur'an, by
way of istihsan, permitted bequests to be made during the lifetime of
the testator, we are surely not using istihsdn in its technical/juristic
sense — that is, giving preference to one qiyils over another or making
an exception to an existing legal norm — but merely saying that the
Qur'an preferred one of the two conceivable solutions in that partic-
ular case. When the Qur'dn authorises bequests, then one might say
thar it has established a legal norm in its own might regardless as to
whether it can be described as an exception to another norm or not.
To regard this Qur’anic ruling as an istihsdn can only be true if istihsiin
is used in its literal sense, for, as a principle of jurisprudence, istihsin
can add nothing to the authority of the Qur'in and the Sunnah.
Although one might be able to find the genesis of istihsdn in the
Qur'an, this would have nothing to do with the notion of construct-
ing istihsdn as an alternative to, or a technique of escape from, giyds.
Furthermore, to read istihsdn into the lines of the Qur'an would seem
superfluous in the face of the legal theory of the usiil that there is no
room for rationalist doctrines such as istihsdn in the event that a ruling.

Lstihsin (Equity in Islamic Law) 347

can be found in the nusis. Notwithstanding the fact that many
Observers have considered Aba al-Hasan al-Karkhi's definition to be
the most acceptable, my enquiry leads to the conclusion that the
Maliki approach to istilsdn and !bn al-Arabi’s definition of it, is wider
in scope, and probably closest to the original conception of istihsan,
for it does not seck to establish a link between isnhsan and qiyas.

Istihsan has undoubtedly played a significant role in the develop-
ment of Islamic law, a role that is sometimes ranked even higher than
that of giyis, Notwithstanding a measure of reticence on the part of
the ‘wlama’ co highlight the role of istihsdin, in reality it features most
prominently in bridging the gap between law and social realities by
enabling the jurist to pay individual attention to circumstances and
the peculiarities of particular problems. But for reasons that have
already been explained, the fugahd’ have exercised restraint in the use
of istihsin, which, as a result, has not been utilised to the maximum
of its potential. Hence, it is not surprising to note that a certain gap
between theory and practice has developed in Islamic law.” The
potentials of istihsdn could hardly be translated into reality unless
intihsdn is stripped of its unwarranted accretions. The only consider-
ation that needs to be closely observed in istibsin is whether there 1s
a more compelling reason to warrant a departure from an existing
law. The reason that justifies resort to istihsdn must not only be valid
in Shart‘ah but must serve a higher objective of it and must therefore
be given preference over the existing law that is deemed unfair. Since
istihsdn enables a choice between alternative solutions, it assesses the
relative merits and demerits of cach of the alternatives. The existing
law is always the base on which an alternative is devised through istibudn,
In this sense, istihsan offers considerable potential for innovation and
for imaginative solutions to legal problems, The aim in istihsdn is not
merely to find a solution to a particular problem but to find a better
solution than the one that already exists. It therefore calls for a higher
Jevel of analysis and refinement, which must in essence transcend the
existing law and analogy.

‘The potential for new alternatives in isthsiin would thus be consid-
erably restricted if it were to be subjected to the requirements of qiyils
The two are essentially designed for different purposes and cach must
be allowed to function in its best capacity. Analogy essentially extends
the logic of the Qur'an and the Sunnah, whereas istibiain is designed to
tackle the irregularities of giyas. Thus it would seem methodologically
incorrect t0 the two into a single formula,

Istibsan has admittedly nov played 2 noticeable role in the legal and

348 PRINCIPLES OF ISLAMIC JURISPRUDENCE

ined in the realm

judicial practices of our times. It has, a8 it were, r

of controv

which may partly be explained by the domumance of
the phenome g the attitude of lawyers and judges
cowards istihsan, Only the rulings of the jurists of the past have been

upheld on istifsdn, and even this has not been totally free of hesita~
tion. Muslim rulers and judges have made litte or no use of istibsin
cithe veloping existing law or in the day-to-day administratio

This is pac jew of the eminent
suitability of istihsdn in the search for fair and equitable solutions.
Istihsan can best be used as a method by which to improve the

law, to strip it of impractical and undesirable elements and

ly unjustified, especially in

exist

to refine it by means of making necessary exceptions. Istihsdn, in other

words, generally operates within the confines of the legal status quo
and does not seek a radical change in the existing law, although it has

considerable potential to effect innovation and refinement.

Judges and lawyers are generally reluctan
ing law, or to make exceptions to it, eve

a departure would be

to depart from the exist
in the face of evidence that

n the i

rests of fairness and justice. Their

reluctance is often due to the reticence in the law as to precisely whi
role the judge has to play in such a situation. Judges are normally
expected to enforce the law at all costs, and often have little choice
in the matter regardless of the circumstances or results. Alternatively,
it may be that the judges are, in fact, doing this — departing from the
law when it seems patently unfair — without openly acknowledging
what they are doing. In any case, it would seem advisable for the
legislature to explicitly au
he considers this to be the only way of achieving a fair solution in a
case under consideration. In this way, istihsdn would hopefully find
a place in the day-to-day administration of justice and would conse
quently encourage flexibility and fairness in law and judicial practice
Judicial decisions would, in turn, influence legislation and contribute
to attaining a more refined and equitable legal order. A clear and well-
defined role for istihsdn would hopefully mark a new opening in the
evolutionary process of Islamic law

horise the judge to resort to istihsdn when

NOTES
1, Osborn’s Gancise Line Diconary, on 124, defines equity as follows: "Primarily
fairest or natural justice, A feesh body of rules by the side of the original law, founded

on distinct principles, and claiming so supenede the law in virtwe of a superior sanctity

Istihsin (Equity in Islamic Law) 349

inherent in those principles. Equity is the body of rules formulated and administered by

the Court of Chancery to wpplement

procedure of the Common Lave

For a discusion see Kerr, Lila

3. Makdial, "Legal Logie’. p. 9

4. For deuils sce Si

nl, Maithal. pp. 1198.

5. Umm al-swoled is a female slave who has bore a child to her master, and wh
comequently free at hit death. A did

yah Ws» woman who is a follower of # revealed

religion, namely Christianity and Judaism,
6. CE Abmud Hasan, Early Developme
Mabatt, X, 1455

tp. 148
1 Hanibal, Miumad, V
% Khudart, Tamth p. 199. fbn Hazm, al-Mubll, VIN, 359,
9. Abs Zahe Malik’
appears in Shatibt, Muwsdfegdt (ed. Diraz), 1V, 208
Yo. Sarakhst, Mabsis, X, 145
4. tbe Taymiyyah, Mav‘alah al-2athaln, p. 446
2 "Alskathsdn huge tank omugtads alndatll “ale party af istthna’
ant diadah md yi Andd Wnt ft bdo mugiadaydh” See Non al-'Atabsl, Abi al-Q
$7. A discuuion of tbe al-'Arab’s definition also appears in Shauihi, Muudhigdr,
Divas), 1V, 2:

Usd, p. 107 and ars. b

J. ADO Zahral, Uyil. p, 207
+ Yuu Ali's commentary to The Holy Qur'an, p. 1241, 0. 4169,
¢ Amit (Ihkiim, 1, 214) considers this w be a badtth b
tah ibn Mas'dd; see also Shicibt,

is more likely to be 3

laying of the prominent companion, ‘Abd rian, U,
19.
16. Thea Mijah, Sonam, I, 78a, hadlth no. 23405 Shatibt, Muwatfagat (ed. Diras), Il,
Khuda, Tavith, p. 199,
Sarakhat, Ul, 11, 260,

1. Amit, thhdm, 1V, 159.

9, Tbid., p. 160; Gand, Mustay2, 1, 18

30. Abmuad Hasan, “The Principle of haihan’, p, 547

21. Tom al-Mugafls", Rindlah, p. 125. AbO Solaymin, ae ikr, p

22, For further on qiyas see Kamali, “Qrytr (Analogy)" in The Baryslopedia of Rely
XIL, pp. vas

25. Couhom, Conf, pp. 6-7.

a4 Sha’bin, Ul, p. 100.

as. Khallif, fim, p. 83; Nabbirit, Mugaddimah, p. 67

26. Note the use of these termw e.g. in $abtnt, Madkhol, p. 123

37, Thus the MAEKi jorist Tn al-Hajib clawifies ieihuy into three cstegories of
accepted (maghid, rejected (mandild) and uncertain (muteraddid), adding that isihan
‘which is based on strongee grounds i acceptable wo all ur tibiae which can find 90
support in the mass, mul oF qiple i yenerally disputed. See fbn al-143jib, Mubieayar, I
485

28. CL Mos, Madkhal, p.y7; Khalaf, “Tim, p. Ka, For hadrth that validate varvous
cypes of sMinah Cand, labour, animals, etc.) see Ib Rush, Bidayih, I, 22-1

29. Sabih al-Blukhin (trans. Khan), Ml, 575, badidh no, yy: SibOnt, Madkhal,

Pp. H23~4

ISLAMIC JURISPRUDEN

Frivdn, Th 08

Ibn Rushd, Bideyith, 1, 290, S8b6nt, Mas Zang, Madhieal, 1, 7
x6. Shay, Aid alm, “Kitab thgal alleen’, V
Tid, VIN, 278
8. Abmad ihn. 9
i with regard, for example, to rmplement
f four wimene, each of whom point a

alleged to have taken place. This i + case

18 to Ghat, of doube (subi) in the proof of zint® which would prevent th

ment of the For according to a hadith, bmdid are 10 be

all cases of doubt. Aba

anifah' ruling m based on utihdn, apparencly on the

that disbelieving the Mush b al-mustimin) mile. Ghazi
Mantfah's ruling as whimsical n of nh pould not be follow
109)

43. Told, 18

44. Amid, Sok is

43. Shivibs, Muautfagte (ed. Diraz), 1V, 206

46, Khudart, Tarthh, p. 20¢

47, MO, Madbhal, p. 198

4%. Taftadnl, Taheth, p, 82. 1C it not certain whether Taftdedint was a Hanafl or a
‘Shafi In a bibliographical notation ow Tafedzdnit, itis stated that he is sometimes 6
sidered himtelf + Hanafl arxd sometimes 4 Shifi, See abMawsd'ah alsFighiyya, l 5

49. Khallaf, ‘din, p. hy; MOxd, Madbhal, p97

2. AbO Zahrah, & rf

st. CL Sharibt, Muwtfigas, IV, 208; Miga, al-Ra'y, p. 40x and 426

Iba Tayeniyyul, Mas“aleh al-lidhsbs, pp, asi Yusuf, “The Theory of livsda

po

3. Sadr al-Shast‘ah, al

with, 111, 10; Mauda, FV, 46; Hasan, Analogical Resioming

4. See for Finther dewils Saeakbs!, Ut, I, 208

$< ShaG's, Rinilah, p. 206.
56. Joveph Schacht has devors

chapter wo the wubject, entitled “Theory and Practice
where he elaborates on how the gap between the law and social realities has widened.
See tnt

duction wo Iiamie Lave, pp. 7686.

CHAPTER THIRTEEN

Maslahah Mursalah (Considerations of
Public Interest)

Literally, maslahah means “benefit’ or ‘interest’, When it is qualified as
maylahah mursalah, however, it refers to unrestricted public interest in

the sense of its not having
no textual authority can be found on its validity or otherwise.’ It is
synonymous with istigldh, and is occasionally referred to as maylahah
muflagah on account of its being undetined by the established rules of
the Sharf’ah. For al-Ghazall, maslabah consists of considerations which
secure a benefit or prevent a harm but which are, simultaneously

harmonious with the objectives (magasid) of the Sharf ah, These objec

tives, the same author adds, consist of protecting the five ‘essential
values’, namely religion, life, intellect, lineage and property. Any
measure that secures these values falls within the scope of maslahah,
and anything which violates them is mafiadah (‘evil’), and preventing
the latter is also maslabah,* More technically, maslahah mursalal is
defined as a consideration that is proper and harmonious (wagf mundsib
mula’im) with the objectives of the Lawgiver; it secures a benefit or
prevents a harm; and the Sharfah provides no indication as to its
validity or otherwise.’ The Companions, for example, decided to issue
currency, to establish prisons, and to impose tax (khan) on agricul-
tural lands in the conquered territories despite the fact that no textual
authority could be found in favour of this.* The ‘lama’ are in agree-
‘ment that istisldh is not a proof in respect of devotional matters ("ibadat)
and the specific injunctions of the Shari'ah (mugaddardi), Thus the
musils regarding prescribed penalties (hudiid) and penances (leaffirdt),

en regulated by the Lawgiver insofar as

352 PRINCIPLES OF ISLAMIC JURISPRUDENCE

the fixed entitlements in inheritance (fari’id), the specified periods of

iddah that divorced women must observe, and such oth
Il outside the scope of istiglah. Since

are clear and decisive f
values and ca
intellect, ijtihdd, be it in the form of istislib, jurisne preference
‘stihsan) or giyis, does not apply to them. Furthermore, with regard
to ‘ibadat and other clear injunctions, the believer is duty-bound to
follow them as they are, But outside these areas, the majority of
lama” have validated reliance on istislih as a proof of Si

precise
cannot be ascertained by the human

ses of ‘ibe

ah ins
own right

Istislah derives its validity from the norm that
legislation (tashrt) in Islam is to secure the welfare of the people by
promoting their benefit or by protecting them against harm. The ways
and means that bring benefit to the people are virtually endless. The
masalils (pl. of masla
nor predicted in advance as they change according to time and circum
ice." To enact a law may be beneficial at one Hime and harmful ar
ther; and even at one and the same time, it may be beneficial
under certain conditions, but prove to be harmful in other circum-
stances. The ruler and the mujtahid must therefore be able to act in
pursuit of the masdlih as and when these present themselves.

The majority of ‘wlama' maintain that istisldh is'a proper g
for legislation. When the maslahah is identified and the mujtahid does
not find an explicit ruling in the mils, he must act in its pursuit by
taking the necessary steps to secure it. This is justified by saying that
God's purpose in revealing the Shariah is to promote man's welfare
and to prevent corruption in the earth, This is, as al-Shatibl points
out, the purport of the Qur'inic dyah in sOra al-Anbiya’ (21:107)
where the purpose of the prophethood of Mubammad is described
in the following terms: "We have not sent you but as a mercy for all
creatures,”

basic purpose of

ah), in other words, can neither be enumerated

cla an, Y) SUL I Ly

In another passage, the Qur'an describes itself, saying: “O mankind, a
direction has come to you from your Lord, a healing for the ailments
in your heart’ (Yanus, 10:57)

aphall § U cling 6S, op te ye Sele ab pla el b

The message here transcends all barriers that divide humanity; none

MaslahalMursalah (Considerations of Public Interest) 353

must stand in the way of secking mercy and beneficence for human
beings. Elsewhere, God describes His purpose in the revelation of
religion, saying that it is not within His intentions to make religion a
means of imposing hardship (al-Hajj, 22:78). This is confirmed else-
where in siira al-Mi'idah (5:6) where we read, in more general terms,
that ‘God never intends to impose hardship upon people."

Co ot pS Jam Slate

These are some of the Qur'dnic objectives that embrace the
essence of maslabah; they are permanent in character and would be
frustrated if they were w be subjected to the kind of restrictions
that the opponents of maslahah have proposed, We shall discuss the
views of the opponents of maslaah in fuller detail later; suffice it here
w point out that their argument amounts to a proposition that the
general objectives of the Qur'an can only be implemented, in regard
to particular cases, if there is another nasy available in their support
This would seem to amount to an unwarranted restriction on the
general objectives of the Lawgiver as these are expounded in the
Qur'in.

The ‘ulama’ have quoted a number of hadith that authorise acting
upon maslabah, although none is in the nature of a clear nays on the
subject. Particular attention is given, in this context, to the hadith
stating that ‘no harm shall be inflicted or reciprocated in Islam’

EY QoL Vy ae Y

The substance of this hadith is upheld in a number of other hadith,
and it is argued that this hadith encompasses the essence of maylahah
in all its varieties.’® Najm al-Din al~Tafi, a Hanball jurist (d. 716 An),
has gone so far as to maintain, as we shall further elaborate, that this
hadith provides a decisive nays on istislh. The widow of the Prophet,
‘Kishab, is reported to have said that ‘the Prophet only chose
the easier of two alternatives, so long as it did not amount to a

sin’

WY Sef al tot Yt geal one GEL

According to another hadith, the Prophet is reported to have said that
“Muslims are bound by their stipulations, unless it be a condition
which cams a hardm into halél or a halal into a harim’.

354 PRINCIPLES OF ISLAMIC JURISPRUDENCE

De pe Fla pl tht 9 ppb de Opt!

This would seem to grant Muslims the liberty to pursue their benefits
and to commit themselves to that end provided that this does not
amount to a violation of the explicit commands and prohibitions of
the Shariah. In yet another hadith, the Prophet is quoted to have said:
‘God loves to see that His concessions {nikhas] are observed, just as
He loves to see that His strict laws [aza'im} are obeyed."

athe gp Ol LE US way 3g of Le do

This would confirm the doctrine that no unnecessary rigour in the
enforcement of the ablim is recommended, and that the Muslims
should avail themselves of the flexibility and concessions that the
Lawgiver has granted them and utilise them in pursuit of their mayalih
The rigorous approach that the Zahirl ‘ulamd* have taken in regard
to maslahah, a8 will later be discussed, tends to oppose the purport of
this hadith

Technically, however, the concept of maslabah mursalah does not
apply to the rulings of the Prophet, When there is a Prophetic ruling
in favour of a maslahah, it becomes part of the established law, and
hence no longer a maslahah munalah. Historically, the notion of maslabah
muralah originated in the practice of the Companions. This is, of
course, not to say that the Prophet did not rule in favour of maslahah,
but merely to point out that as a principle of jurisprudence, maslabah
murvalah does not apply to the rulings of the Sunnah

The practice of the Companions, the Successors and the leading
‘mujtahidan of the past tends to suggest that they enacted laws and took
measures in pursuance of maylahah despite the lack of textual authority
to validate it. The Caliph Aba Bakr, for example, collected and com-
plied the scattered records of the Qur’In in a single volume; he also
waged war on those who refused to pay the zakidh; and he nominated
Umar to succeed him."* Similarly, ‘Umar ibn al-Khatyib held his
officials accountable for the wealth they had accumulated in abuse of
public office and expropriated such wealth. He also poured away milk
to which water had been added as a punishment to deter dishonesty
in trade, Furthermore, ‘Umar ibn al-Khartib suspended the execution
of the prescribed punishment for theft in a year of famine, and approved
of the views of the Companions to execute a group of cnminals for
the murder of one person.'' These decisions were taken despite the

Maslahah Mursalah (Considerations of Public Interest) 355

clear ruling of the Qur’in conceming retaliation (gisis), which is “life
for life’, and the Qur’snic text on the amputation of the hand, which
is not qualified in any way whatsoever. But the Caliph ‘Umar’s deci-
sion concerning gisay was based on the rationale that the lives of the
people would be exposed to aggression if participants in murder were
exempted from qisds. Public interest thus dictated the application of
gisas to all who took part in murdering a single individual. Furthermore,
the third Caliph, “Uthmin, distributed the authenticated Qur’da and
destroyed all the variant versions of the text. He also validated the
fight to inheritance of a woman whose husband had divorced her in
order to be disinherited. The fourth Caliph, “All, is also on record as
having held craftsmen and traders responsible for the loss of goods
that were placed in their custody. This he considered to be for the
maslahah of the people so that traders would take greater care in safe-
guarding people's property." In a similar vein, the ‘ulama’ of the
various schools have validated the interdiction of the ignorant
physician, the clowning mufti and the bankrupt trickster on grounds
of preventing harm to the people. The Malikis have also authorised
detention and ta'zfr for want of evidence of a person who is accused
of a crime.’ In all these instances, the ‘ulama’ have aimed at securing
the maslahah mursalah by following a Shari“ah-oriented policy (slydsah
shar iyyah), which is largely concurrent with the dictates of maslahah.
As Ibn Qayyim has observed, siydsah shar iyyah comprises all measures
that bring the people close to wellbeing (salah) and move them
further away from corruption [fasdd], even if no authority is found
for them in divine revelation and the Sunnah of the Prophet.’

‘The main support for istislah as a proof and basis of legislation (cash)
comes from Imam Milik, who has given the following reasons in its
favour. (1) The Companions have validated it and have formulated
the rules of Shariah on its basis. (2) When the majlahah is compatible
with the objectives of the Lawgiver (magdstd al-shar?) or falls within
the genus or category of what the Lawgiver has expressly validated,
it must be upheld, for neglecting it under such circumstances is tanta-
mount to neglecting the objectives of the Lawgiver, which is to be
avoided. Hence, maslahah as such is a norm of the Shari‘ah in its own
right; it is by no means extraneous to the Sharf'ah but an integral part
of it. (3) When maslahah is of the genus of the approved mayabih and
is not upheld, the likely result is the infliction of hardship on the
people, which must be prevented.'*

356 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Maslahah Mursalah (Considerations of Public Interest) 357

I, Types of Maslahah

The mayalib in general are divided into three types, namely, the ‘essen~
tials’ (daniriyyaf), the ‘complementary’ (hijiyyat) and the “embellish:

ments’ (tahsiniyyat). The Shart'ah in all its parts aims at the realisation
of one of the other of these masalif. The ‘essential’ masalils are those
‘on which the lives of people depend, and whone neglect leads to toral
disruption and chaos, They consist of the five exential values (al-
dariviyyat al-khamsah) namely religion, life, intellect, lineage and
property, These must not only be promoted but also protected against
any real or unexpected threat that undermines their safety. To uphold
the faith would thus requite observance of the prescribed forms of
ibadat, whereas the safety of life and intellect is secured by obtaining
lawful means of sustenance as well as the enforcement of penalties
which the Shar ah has provided so as to protect them against destruc-
tion and loss.”

The hajiyyat are on the whole supplementary to the five essential
values, and refer to interests whose neglect leads to hardship in the
life of the community although not to its collapse, Thus in the area
of ‘ibadat the concessions (nukhas) that the Shart ah has granted to the
sick and to the traveller, permitting them not to observe the fast and
to shorten the salh, are aimed at preventing hardship, Similatly, the
basic permissibility (ibdbah) regarding the enjoyment of victuals and
hunting is complementary to the main objectives of protecting life
and intellect.’

Certain interests are likely to be evaluated differently when they
are seen from the viewpoint of the individual or the community
respectively. An example of this is sale, which is an essential interest
when it is seen from the viewpoint of the community as a whole, but
it is likely to be downgraded to the second category of interests, that
is, hijiyydt, when it is seen from the viewpoint of a particular indi-
vidual. Al-Shatibi has similarly observed that a certain act may be
mubah from the view point of individual interest, but may be elevated
to mandib, or even wijib, in respect of the community as a whole.
Although the ‘wlama’ have identified the essential interests as five, and
according to a minority view as six, thus adding honour (al-"ird) to
the list, this identification must remain open-ended, just as is the case
with the masilih as a whole. Nowadays, we may be inclined to include
such things as economic development, employment and protecting
the environment among the essential or complementary interests,
depending on the priority they may command in a particular country

or under a given set of circumstances. The lawful goverment and
the Gili al-amr should have the authonty to identify and declare them.
as such, and then take the necessary measures for their realisation.

The ‘embellishments’ (tabsiniyyar, also known as kamdliyyat) denote
interests whose realisation leads to improvement and the attainment
of that which is desirable. Thus the observance of cleanliness in
personal appearance and ‘ibadat, moral virtues, avoiding extravagance
in consumption and moderation in the enforcement of penalties fall
within the scope of tahsiniyyat.

Ie will be noted that the unrestricted maylahah does not represent
a specific category of its own in the foregoing classification, for the
obvious reason that it could fall into any of the three types of mayalib.
Should it be the case that the realisation of maslahah mursalah is sine
qua non to an essential maslahah, then the former becomes a part of the
latter. Likewise, if maslahah mursalah happens to be a means to attain-
ing one of the second classes of mayalih, then it would itself fall into
that category, and so on. Furthermore, we may briefly add here the
point that al-Shagibi has discussed at some length, that the masdlih are
all relative (misbi, idaff) and as such, all the varieties of maslahah, includ-
ing the essential masdlib, partake of a measure of hardship and even
mafiadah, Since there is no absolute maslahah as such, the determina-
tion of value in any type of maylahah is based on the preponderance of
benefit that accrues from it, provided that the benefit in question is
in harmony with the objectives of the Lawgiver.”*

From the viewpoint of the availabiliy or otherwise of a textual
authority in its favour, maslahah is further divided into three types.
First, there is maslahah that the Lawgiver has expressly upheld, and
enacted a law for its realisation, This is called al-maslahah al-mw taharah,
or accredited maslahah, such as protecting life by enacting the law of
retaliation (qisds), of defending the right of ownership by penalising
the thief, of protecting the dignity and honour of the individual by
penalising adultery and false accusation. The Lawgiver has, in other
words, upheld that each of these offences constitutes a proper ground
(wiagf mundsib) for che punishment in question. The validity of maslabah
these cases is definitive and no longer open to debate. The ‘wlama’
are in agreement that promoting and protecting such values consti-
tutes a proper ground for legislation. The fact that the Lawgiver has
upheld them is tantamount to: His permission and approval of all
measures, including legislation, that aim at their realisation.”

But the masalily that have been validated after divine revelation came
to an end fall into the second class, namely the maylahah mursalah.

358 PRINCIPLES OF ISLAMIC JURISPRUDENCE

This too consists of a proper attribute (wagf mundsib) to justify the
necessary legislation, but since the Lawgiver has neither upheld nor
nullified it, it constitutes maslahah of the second rank. For examp
in recent times, the maslahah that prompted legislation in many Muslim
countries, which provided that the claim of marriage or of owner-
ship in real property, can only be proved by means of an official
document, has not been explicitly validated by the Sharf ah, The law
on these points has thus upheld the unrestricted maslahah; more
specifically, it is designed to prevent a mefiadah, which is the preva
lence of perjury (shahddah al-zir) in the proof of these claims.”*

The third variety of maylahah is the discredited maslahah, of maslabah
mulghd, which the Lawgiver has nullified either explicitly or by an
indication that can be found in the Sharf ah. The ‘ulama’ are in agree~
ment that legislation in the pursuance of such interests is invalid and
no judicial decree may be issued in their favour, An example of this
would be an attempt to give the son and the daughter an equal share
in inheritance on the asumption that this will secure a public interest.
But since there isa clear nayy in the Qur’dn (al-Nisd’, 4:11) that assigns
to the son double the portion of the daughter, the apparent maslabah
in this case is clearly nullified (malghd).”*

To summanse, when the Shari'ah provides an indication, whether
direct or implicit, on the validity of a maslahah, it falls under the
accredited masilih. The opposite of this is maylahah mulghd, which is
overruled by a similar indication in the sources. The unrestricted
majlaboh applies to all other cases that are neither validated nor
nullified by the Shariah.

Il. Conditions (Shurif) of Maslahah Mursalah

The following conditions must be fulfilled in order to validate reliance
‘on maslakah mursalah, These conditions are designed to ensure that
maslahah does not become an instrument of asbitrary desire or indi-
vidual bias in legislation.

(1) The mazlahah must be genuine (hagigiyyah), as opposed to a
plausible maslabah (maslabah wahmiyyah) which is not a proper ground
for legislation. A mere suspicion or specious conjecture (tawuhhum)
that 4 certain act of legislation will be beneficial, without ascertain-
ing the necessary balance between its possible benefits and harms, is not
sufficient, There must, in other words, be a reasonable probability
that the benefits of enacting a bukm in the pursuance of maslahah
outweigh the harms that might result from it. An example of a specious

Maslahah Mursalak (Considerations of Public Interest) 359

maslabah, according to Khallif, would be to abolish the husband's
right of jaldg by vesting it entirely in a court of law."

Genuine masalih are those that aim to protect the five essential
values noted above. Protecting the faith, for example, necessitates the
prevention of sedition (fitnah) and of the propagation of heresy. It also
means safeguarding freedom of belief in accordance with the
Quranic principle that ‘there shall be no compulsion in religion’
(al-Bagarah, 2:256).

ol gel sy

Similarly, safeguarding the right co live includes protecting the
means which facilitate an honourable life such as the freedom to work,
freedom of speech and freedom to travel. Protecting the intellect (‘agl)
necessitates the promotion of learning and safeguards against calamities
that corrupt the individual and make him a burden to society, Further-
more, safeguarding the purity of lineage (nas!) entails protection of
the family and creation of a favourable environment for the care and
custody of children, And lastly, the protection of property requires
defending the right of ownership. It also means facilitating fair trade
and the lawful exchange of goods and services in the community.”

(2) The second condition is that the maylabah must be general
(kulliyyah) ir. that it secures benefit, ot prevents harm, to the people as
a whole and not to a particular person or group of persons. This means
that enacting a hulm on grounds of istislah must hope wo realise a
benefit yielded to the largest possible number of people. It is not
maslabah if it secures the interest of a few individuals regardless of
their social and political status. The whole concept of maslahah derives
its validity from the idea that it secures the welfare of the people at
lame"

NG) Lasly, the maglabeh caust not be in-conflict wich a principle
or value that is upheld by mags or ijmd’. Hence the argument, for
example, that maslahah in modem umes would require the legalisation
of usuiry (riba’) on account of the change in the circumstances in which
it is practised, comes into conflict with the clear nass of the Qur'sn.
‘The view that riba in the way it is practised in modern banking does
not fall under the Qur’dnic prohibition, as Abd Zahrah points out,
violates the nass and therefore negates the whole concept of maslahah.””
Imam Malik has added two other conditions to the foregoing, ane
of which is that the maslabalymust be rational (ma qilah) and accept-
able to people of sound intellect. The other condition is that it must

360 PRINCIPLES OF ISLAMIC JURISPRUDENCE

prevent or remove hardship from the people, which is the express
purpose of the Qur'anic dyah in stra al-Ma°idah (5:6) quoted above.
Furthermore, according to al-Ghazali, maglahah, in order to be
lid, must be essential (al-maslahah al-daniriyyah). To illustrate this,
al-Ghaz3l gives the example of when unbelievers in the battlefield
take a group of Muslims as hostages. If the situation is such that the
safety of all the Muslims and their victory necessitates the death of
. then al-Ghazili permits this in the name of al-maslalsah
aririyyah.) However, the weakness of al-Ghazili's argument
appears to be that the intended majlahah in this example entails the
killing of innocent Muslims, and the Sharf‘ah provides no indication
to validate this.

Ill, Al-Tifi’s View of Maslahah Mursalah

Whereas the majority of jurists do not allow recourse to istislth in the
presence of 2 textual ruling, a prominent Hanbalt jurist, Najm al-Din
al-Tafl, stands out for his view, which authorises recourse to maylahah
with of without the existence of nays. Ina treatise entitled al-Masalib
Mursalah, which is a commentary on the badith that ‘no harm shall
be inflicted or reciprocated in Islam’, al-TOfl argues thar this hadith
provides a clear najg in favour of maslahah. It enshrines the first and
most important principle of Sharfalt and enables majlahah to uke
precedence over all other considerations. Al-Taifl precludes devotional
matters, and specific injunctions such as the prescribed penalties, from
the scope of maslabah, In regard to these matters, the law cans only be
established by the nasy and ijmi. If the nays and jjmi endorse one
another on ‘ibadat, the proof is decisive and must be followed. Should
there be a conflict of authority between the najy and ima’, bur it is
possible to reconcile them without interfering with the integrity of
either, this should be done. But if this is not possible, then ijmi
should take priority over other indications.*!

As for transactions and temporal affairs (aledm al-mu'amalat wa
al-siyaslyyat al-dunyawtyyah), al~TOfi maintains that if the text and other
proaté of Sharf‘ah happen to conform to the maglahah of the people
in a particular case, they should be applied forthwith: but if they
oppose it, then maslabak should take precedence over them. The
conflict is really not between the nays and mazlahah, but between one
nnas¢ and another, the latter being the hadith of la darar wx la dinir
fi'L-Islam, One must therefore not fail to act upon that text which
‘materialises the maslahah. This process would amount to restricting

Maslahah Mursalah (Considerations of Public Interest) 361

the application of one najs by reason of another nays and not to a
suspension or abrogation thereof. It is a process of specification
(takhsis) and explanation (bayar), just as the Sunnah is sometimes
given preference over the Qur'an by way of clarifying the text of the
Qur'in*

In the areas of transactions and governmental affairs, al-Tofl adds,
maslahah constitutes the goal whereas the other proofs are like the
means; the end must take precedence over the means. The rules of
Shariah on these matters have been enacted in order to secure the
mayalih of the people, and therefore when there is a conflict between
a maslabah and nass, the hadith la darar wa la dirdr clearly dictates that
the former must take priority.” In short, al-Tafi’s doctrine, as
Mahmassini has observed, amounts to saying after each ruling of the
text, ‘Provided public interest does not require otherwise'.””

IV, Differences between Istislah, Analogy and Istilisain

In his effort to determine the shar ruling on 2 particular issue, the
jurist must refer to the Qur'an, the Sunnah and ima, In the absence
‘of any ruling in these sources, he must attempt qiyds by identifying a
common ‘illah between a ruling of the text and the issue for which
2 solution is required. However, if the solution arrived at through
iyds leads to hardship or unfair results, he may depart from it in
favour of an alternative analogy in which the ‘illah, although less
obvious, is conducive to obtaining a preferable solution. The alterna-
tive analogy is a preferable giyds, or istihsdn. In the event, however,
that no analogy can be applied, the jurist may resort to maylahah
mursalah and formulate a ruling which, in his opinion, serves a useful
purpose or prevents a harm that may otherwise occur.!*

Te thus appears that majlahah mursalah and qiyas have a feature in
common in that both are applicable to cases in which there is no clear
ruling available in the nusiy or ijma*. They also resemble one another
in the sense that the benefit that is secured by recourse to them is
based on a probability, or zanm, either in the form of an ‘illah in the
case of giyiis, of of a rational consideration that secures a benefit in
the case of maslabah mursalah. However, qiyis and maglahah differ
from one another in certain respects. The benefit that is secured by
giyis is founded on an indication from the Lawgiver, and a specific
‘illah is identified to justify the analogy to the nass, But the benefit
sought through maglabah nurgalal has no specific basis in established
law, whether in favour or against. Maylabah mursalah in other words

362 PRINCIPLES OF ISLAMIC JURISPRUDENCE

stands on its own justification, whereas giyds is the extension of a
ruling that already exists

This explanation also serves to clarify the main difference between
maslabah and istihsdn. A ruling which is based on maslabah mursalah is
original in the sense that it does not follow, or represent 2 departure
from, an existing precedent. As for istihsdn, it only applies to cases for
which a precedent is available (usually in the form of giyds), but
istihsin seeks a departure from it in favour of an alternative ruling,
This alternative may take the form of a hidden analogy (giyds khafi)
or of an exception to a ruling of the existing law, each representing

a variation of istifesdn,!

V. The Polemics over Maslahah

The main point in the argument advanced by the opponents of istislaly
is chat the Sharf ah takes full cognizance of all maydlily; it is all-inclusive
and there is no maslahah outside the Shart ah itself. This is the view
of the Zihiris and some Shafi'ls like al-Amidi, and the Maliki jurist
Ibn al-Hajib, who do not recognise majlahah as a proof in its own
right. They maintain that the masdlif are all exclusively contained in
the musiis. When the Sharf‘ah is totally silent on a matter, this is a sure
sign that the maslahah in question is no more than a specious maglabah
(maslabah wahmiyyah) that is not a valid ground for legislation.”

The Hanafis and the Shafi'ls have, on the other hand, adopted a
relatively more flexible stance, maintaining that the maydlih are either
validated in the explicit nugis, or indicated in the rationale ((illah) of
a given text, or even in the general objectives of the Lawgiver. Only
in the presence of a textual indication can maslahah constitute a valid
ground for legislation. The identification of the causes (‘ilal) and objec-
tives, according to this view, entails the kind of enquiry into the ‘illal
that is required in qiyds. The main difference between this view and
that of the Zihiris is that the former validates maglahah on the basis of
the rationale and the objective of the Shari'ah even in the absence of a
specific mags. Both these views are founded on the argument that if
maslahah is not guided by the values upheld in the musts, there is a danger
of confusing maslahah with arbitrary desires, which might lead to
corruption and mafzadah. Experience has shown that this has frequently
occurred at the behest of rulers and governors who have justified their
personal wishes in the name of maslahak, The way to avoid this is
indicated in the Qur'an in sira al-Qiyamah (75:36), where we read:
"Does man think that he has been left without guidance?’

Maslahah Mursalah (Considerations of Public Interest) 363

ote Dy of oy) Cal

The maslabah must therefore be guided by the values that the
Lawgiver has upheld. Hence there is no maslahah unless it is corrob-
orated by an indication in the Shariah" While commenting on
istihsin, Imam Ghazll writes: "We know that the maydlih must always
follow the shar't indications; istihsdn is not guided by such indications
and therefore amounts to no more than a whimsical opinion’. As for
‘majlabah mursalah, al-Ghazll maintains that when it not approved by
the Lawgiver, itis like istibsan.** Al-Ghazill recognises the ‘accredited’
maslabah, that is, when the maslabah is indicated in the nass. He also
approves of maylahah munalah when it is based in definite necessity, that
is, maglahah daniriyyah. In the absence of a definite necessity, al~Ghazali
maintains that maslahah is not valid. Consequently, al-Ghazili does
not approve of the remaining two classes of the masdlih, namely the
complementary (hdjiyyaf), and the embellishments (tahyiniyya)."” By
making the stipulation that the majlahah, in order to be valid, must
be founded on definite necessity, however, al-Ghazill is no longer
speaking of maslahah mursalah, but of necessity (darirah), which is a
different matter altogether and governed by a different set of rules.“
It thus appears that this view only validates the type of maslabah that
is referred to as maslahah mu'tabarah,

The opponents of istislah further add that to accept istiglal as an
independent proof of Sharf ah would lead to disparity, even chaos, in
the ahkim. The hala! and hardm would be held to be applicable in
some places of to some persons and not to others. This would not
only violate the permanent and timeless validity of the Sharfah but
would open the door to corruption.**

‘As already stated, the Hanafis and the Shafi‘is do not accept istisah
as an independent proof. Al-Shafi‘t approves of maslahah only within
the general scope of giyds; whereas AbO Hanifsh validates it as a
variety of istihsin. This would explain why the Shafi'ls and the
Hanatls are both silent on the conditions of maylahah, as they treat the
subject under giyas and istihsan respectively. They have explained
their position as follows: should there be an authority for majlahah in
the musi, that is, if maslahah is one of the accredited maga, then it
‘will automatically fall within the scope of qiyds. In the event where
no such authority can be found in the muss, it is maslahah malgha
and is of no account. But it-would be incorrect to say that there is a
category of maslahah beyond the scope of the nass and analogy to the

364 PRINCIPLES OF ISLAMIC JURISPRUDENCE

nas. To maintain that maslabah mursalah is a proof would amount to
saying that the nusits of the Quen and the Sunnah are incomplete.”
The opponents of istislah have further argued that the Lawgiver has
dated certain mayalih and overruled others. In between there
remains the maslahah mursalah, which belongs to neither. It is therefore
equally open to the possibility of being regarded as valid (mu’tabarali)
or invalid (malghd). Since there is no certainty as to its validity, no
legislation may be based on it, for law must be founded in certainty,
not doubt

In response to this, it is argued that the Lawgiver has proscribed
certain masalis not because there is no benefit in them but mainly
because of their conflict with other superior masdlih, or because they
lead to. greater evil. None of these considerations would apply to
maslahah mursalah, for the benefit in it outweighs its possible harm. It
should be borne in mind that the mapdlih which the Lawgiver has
expressly overruled (i.e. masdlih malghd) are few compared to those
that are upheld, When we have a case of masilib: mursalah on which
no clear authority may be found in the sources, and they appear to
be beneficial, they are more likely to belong to the part that 1s more
extensive and preponderant (kathfr al-ghalib), rather than to that
which is limited and rare (qalil al-nddir).

The Zahirls do not admit speculative evidence of any kind as a
proof of Shar ah. They have invalidated even giyis, let alone maslabah,
‘on the grounds that giyds partakes of speculation. The rules of Sharf ah
must be founded in certainty, and this is only true of the clear injunc=
tions of the Qur'in, Sunnah and ijma. Anything other than these is
mere speculation, which should be avoided." As for the reports that
the Companions issued fatuis on the basis of their own na’y which
might have partaken in maglahah, Ibn Hazm is categorical in saying
that ‘these reports do not bind anyone’. Thus it would follow that
the Zahiris do not accept maglahah mursalah which they consider to
be founded in personal opinion (ra'y).

The Mallikis and the Hanbalis have, on the other hand, held that
maslahah mursalah is authoritative and that all that is needed to validate
action upon it is to fulfil the conditions that ensure its propricty.
When these conditions are met, majlabah becomes an integral part of
the objectives of the Lawgiver even in the absence of a parncular nays.
Abmad ibn Hanbal and his disciples are known to have based many
of their fatwiis on maslahah, which they have upheld as a proof of
Shari'ah and an instrument of protecting the faith, securing justice, and
preventing mafsadah. They have thus validated the death penalty for

Maslahah Mursalah (Considerations of Public Interest) 365

spies whose activity violates the maslahah of the Muslim community,
The Hanbalis have also validated, on grounds of maslahah, the death
penalty for propagators of heresy when protecting the maslahah of the
community requires this, But in all this, the Hanballs, like the Malikis,
insist that the necessary conditions of maslahah must be fulfilled,
Maslahah must pursue the valid objectives of the Shariah and the
dictates of sound intellect, acting upon which fulfils a useful purpose,
or serves to prevent harm to the people. Some of the more
far-reaching instances of majlahah in the Miliki doctrine may be
summarised as follows: (1) Imam Malik validated the pledging of
bay ah (oath of allegiance) to the mafdal, that is the lesser of the two
qualified candidates for the office of the imam, so as to prevent dis-
order and chaos afllicting the life of the community.” (2) When the
Public Treasury (bayt al-mal) runs out of funds, the imam may levy
additional taxes on the wealthy so as to meet the urgent needs of the
government without which injustice and sedition (final) may become
rampant.” (3) In the event where all the means of earning a lawful
living are made inaccessible to a Muslim, he is in a situation where
he cannot escape to another place, and the only way for him to earn
a living is to engage in unlawful occupations; he may do so but only
to the extent that is necesary.”*

Conclusion

Despite their different approaches to majlabah, the leading ‘ulama’ of
the four Sunni schools are in agreement, in principle, that all genuine
maslahah that do not conflict with the objectives (magdsid) of the
Lawgiver must be upheld. This is the conclusion that both Khallif
and Abi Zahra have drawn from their investigations.’* The Shaft
and Hanafi approach to maglahah is essentially the same as that of the
Maliki and Hanbali schools, with the only difference being that the
former have attempted to establish a common ground between
majlahah and the giyds that has an identifiable ‘illah. Some Maliki jurists,
including Shihib al-Din al-Qarafi have observed that all the jurists
are essentially in agreement on the concept and validity of maslahah
mursalah. They only differ on points of procedure: while some would
adopt it directly, others would do so by bringing the majlabah within
the purview of giyis.!* But Imam Malik’s concept of maslalah is the
most far-reaching of the four Sunni schools. Since maslahalh must
always be harmonious with the objectives of the Lawgiver, it is a
norm by itself, Maslahah mursalah as such specifies the general (‘dmm)

Ma;lahah Mursalah (Considerations of Public Interest) 367

66 PRINCIPLES OF ISLAMIC JURISPRUDENCE

by qgiyds. In th nt of conflict b and - P, 4; Badrin, Usa, p. an
The changing condit of . Stata Willits Ss, Sar
Lawgiver has expr: decreed, the Mi 46
rs ib 287; Khallaf, ‘fim, p. 16.
ary restr on th city of the Shari'ah to + as 1, ths; Abo Zahoube Us, pp. va2-3: Maul Zep tla
jal chang Abd al-Wahhab Khallaf i t i 18

Baden, Uy
specific terms.

As for the concem that the opponents of maslahah mursalah have are dea ac Pr. $4
expressed that validating this doctrine would enable arbitrary : Tai baton’ Unit oe acl
self-seeking interests to find their way under the banner of ma ans Rada Ua rs
they only need to be reminded that a careful observance
tions that are attached to maglabah will ensure thar only te
interests of the people that are in harmony with the objectives of the 7 Upip
Shariah would qualify. This concer is admittedly valid, #7; Dadra, Lisl, p. 200

19; Badean, L ais
that cannot be confined to maylahah alone, Arbitrari ms
yo Shavibl, Fxigdm, 1, yop=t4; Monat Zayed, Mavlahah, ps $1

pursuit of self-secking interests have never been totally

y1. Gharsll, Must

any society, under any legal system. It is a permanent threat that must

32 Badin, Usa, pp. 215-16

be carefully checked and minimised to nt that this is possible sy Te

But this very

istiglah were to

purpose will be defeated if leg
¢ denied validity. The av

of M4 Ibid, p. 141; Moma Zayt, Maglabah, pp. 258-240

20 On grou

‘of To's doctrine of maslahah

d, Maslabah, p. £24; AbO Zahrah, Usa, 225

apt to combat the evil ¢

arbitrary indulgence that shakes the banner of maylahah would surely 33. CE Muyuatt Z
Tofts doctrine can ako be found in Keer, Idamie Reform, pp. v7

have greater prospects of success if the mujtahid and the imam were ee

yi. TOM, Mandl, p. 143; Mus
37. Mah
a-Ghalayint in sup,

eating. Wh CF Sabon, Medbhal, pp. 114

harm
ahah

able to enact the necessary legislation on grounds of prever

sant, Falualah al-Tashrt, ps. 107. This author also qu

have advanced would appear to be specious and self-de

yo. CC Badsin, Unil, pp. 2r6=17; Subont, M
qo. Khallif, fim, p. 88; Badrin, Ul, p34
NOTES 4%. Abo Zaheah, Uh, pp. aa, 234: Khallat, “lin, p. 8M Badrin, Us, p 345.

dha. p 135,

42. Ghar, Must, 1, 198
1. Rhallif, “im, p. 84: Badri, Ubih, p. son. 43- Ibid, 1, 9-4
44 CE Badan, Csi p. a1
45. Khallaf, “Tim, p.
ah, Unit, p. 335; Mujath Zayd, Maslaboh, p. 61; Badein, Liyil, p. 219

Ghana, Musial, 1. s39-¥
4, Badan (
4: halls

pe ato; SabGns, Mahal. po 19
Pie 46. Aba Za)

368 PRINCIPLES OF ISLAMI

CHAPTER FOURTEEN

Urf (Custom)

As a noun derived from its Arabic root “arafa (to know), ‘uff literally

means ‘that which is known’. In its primary sense, it is the known as
opposed to the unknown, the familiar and customary as opposed to
the unfamiliar and strange. ‘Upf and

dah are largely synonymous, and

the majority of “s have used them as such, Some observers have,

however, distinguished the two, holding that ‘dah means repetition
or recurrent practice, and can be used with regard to both
and groups. We refer, for example, to the habits of individuals as their
personal ‘ddah, But ‘wrf is not used in this capacity: we do not refer
to the personal habits of individuals as their “uff, It is the collective
practice of a large number of people that is normally denoted by the
word ‘uff. The habits of a few or even a substantial minority within
roup do not constitute ‘wrf

Uf is defined as ‘recurring practices that are acceptable to people
of sound nature’. This definition is clear on the point that custom, in
jons, must be sound and

individuals

a

order to constitute a valid basis for legal dec

reasonable, Hence recurring practices among some people in which
there is no benefit or which partake of prejudice and corruption are
excluded from the definition of ‘uff? “Uf and its derivative, ma'mf,
occur in the Qur'an, and it is the latter of the two that occurs more
frequently. Ma'nif, which literally means ‘known’ is, in its Qur'anic
usage, equated with good, while its opposite, the munkar or ‘strange’,
is equated with evil, It is mainly in this sense that ‘uff and mani seem
to have been used in the Qur’in, The commentators have generally
interpreted ma'nif in the Quf’in as denoting faith in God and His
Messenger, and adherence to God’s injunctions. Thus the standard

370 PRINCIPLES OF ISLAMIC JURISPRUDENCE

na bi al-ma' rif wa tanhawma
s is that “you
orce His laws, and
The same interpre-

ommentary on the Qur'Snic phrase ta’m

I-munkar (Al "Imran, 3:110) given by the exe

enjoin belief in God and in His Messenger and ¢
you forbid disbelief and indulgence

tation is given to the term ‘uff in the text that occurs in sOra al-A'raf
(:199): ‘Keep to forgiveness, enjoin ‘wf and turn away from the

the harden

ignorant

cnlathl ge a ely Dally ly sialh de
According to U uff in this context means fear of God and
the observance of His commands and prohibitions. But occasionally,
ma’ nif'in the Qur’dn occurs in the sense of good conduct, kindness and
justice, especially when the term is applied to a particular situation.

€ exegetes,

It is only when ‘wf or ma'nif is ordered generally without reference
to a particular matter, situation or problem that it carries the mean
ing of adhering to God’s injunctions. The reason for the position
taken by the exegetes becomes apparent if one bears in mind Islam's
qubh) which are, in principle,
jon, Thus when God ordered the

perspective on good and evil (husn
determined by divine reve
promotion of ma’rif, He could not have meant the good that reason
of custom decrees to be such, but what He enjains.* This would also
explain why ‘uff in the sense of custom is not given prominence in
the legal theory of the usil al-figh, although it carries some authority,
as we shall presently explain.

Custom that does not contravene the principles of Sharh is valid
and authoritative; it must be observed and upheld by a court of law
According to a legal maxim recorded by the Shifi'l jurist al-SuyGql
in his well-known work, al-Ashbah wa al-Naza’ir, ‘what is proven by
urf is like that which is proven by a shar proof”. This legal maxim
is also recorded by the Hanafi jurist al-Saraklisi, and was subsequently
adopted in the Ottoman Mujallah which provides that custom,
whether general or specific, is enforceable and constitutes a basis for
judicial decisions.’ The Mujallah has recorded a number of legal
‘maxims on ‘uf, which include the following

(Custom it 4 proof (Art, 96)

“Se

The usage of people is « proof that must be acted upon (Art. 37)

dalall

Uif (Custom) 371

Me jad Cs te I Jy

‘Whar is accepted by ‘wf's like » stipulated condition (Art. 31)

ib by 2S Ws Sy al

1 omen tbe merchans js Uh sip candon becwven ther (A360)
opti oy ALIS slncll coy By all

The ‘ulama’ have generally accepted ‘wf as a valid criterion for the
Purposes of interpreting the Qur'dn, To give an example, the Que’anic
commentators have referred to ‘uffin determining the precise amount
of maintenance a husband must provide for his wife. This is the
subject of sOra al~Talig (65:7) which provides: ‘Let those who powsess
means pay according to their means.”

sass gp tees 33 Gis

In this dyah, the Qur'an does not specify the exact amount of
maintenance, which is to be determined by reference to custom
Similarly, in regard to the maintenance of children, the Qur'in only
specifies that this is the duty of the father, but leaves the quantum of
maintenance to be determined by reference to custom (bi'l-ma' nif)
(al-Bagarab, 2:233). The Shar ah has, in principle, accredited approved
custom as a valid ground in the determination of its rules relating to
halal and hard, This is in turn reflected in the practice of the fugiha’,
who have adopted ‘uf, whether general or specific, as a valid
eriterion in the determination of the abkim of Sharf'ah.* The rules of
Jfigh that are based in junstic opinion (ni'y) ar in speculative analogy
and ijihdd have often been formulated in the light of prevailing
custom; it is therefore permissible to depart from them if the custom
‘on which they were founded changes in the course of ume. The ijtihddi
rules of figh are, for the most part, changeable with changes of time
and circumstance. To deny social change due recognition in the
determination of the rules of figh would amount to exposing the
people to hardship, which the Shar ah forbids. Sometimes even the
same mujtahid has changed his previous ijtihad with a view to bring-
ing it into harmony with prevailing custom. It is well-known, for
example, that Imam al-Shifiy laid the foundations of his school in
Iraq, but that when he went to Egypt, he changed some of his earlier

372 PRINCIPLES OF ISLAMIC JURISPRUDENCE

views owing to the different customs he encountered in Egyptian
society.

Customs that were prevalent during the lifetime of the Prophet
and were not expressly overruled by him are held to have received
his tacit approval and have become part of what is known as Sunnah
tagririyyah, Pre-Islamic Arabian custom which was thus approved by
the Prophet was later upheld by the Companions, who often referred
to it through statements such as "We used to do such-and-such while
the Prophet was alive’ Islam has thus retained many pre-Islamic
Arabian customs while it has at the same time overruled the oppres~
sive and corrupt practices of that society. Islam also attempted to
amend and regulate some of the Arab customary laws with a view
to bringing them into line with the principles of the Shartah. ‘The
reverse of this is also true in the sense that pre-Islamic customs of
Arabia influenced the Sharf‘ah in its formative stages of development
Even in the area of the verbal and actual Sunnah, there are instances
where Arabian custom has been upheld and incorporated within the
Sunnah of the Prophet, An example of this is the rulings of the Sunnah
concerning the liability of the kinsmen of an offender (Le, the ‘dgilah)
for the payment of blood money, or diyah. Similarly, the Sunnah that
regulates certain transactions such as mortgage (rahn), advance sale
(salam) and the requirement of equality (kafi'sh) in marriage have
their roots in the pre-Islamic custom of the Arabs. There are also
vestiges of pre-Islamic custom in the area of inheritance, such as the
significance that the rules of inheritance attach to the male line of
relationship, known as the ‘asabah, As for the post-[slamic custom of
Arabian society, Imam Malik has gone so far as to equate the “amal
«ht al-madinah, that is the customary practice of the people of Medina,
with ima’. This type of ‘amal (lt. practice’) consticutes 2 source of law
in the absence of an explicit ruling in the Qur’in and Sunnah, Custom
has also found its way into the Sharf“ah through juristic preference
(istihsan) and considerations of public interest (maslahah), And of course,
ijma itself has to a large extent served as 3 vehicle for assimilating
customary rules that were in harmony with the Sharf“ah, or were
based in necessity (dartrah), into the general body of the Shariah?

1, The Conditions of Valid “Lif

In addition to being reasonable and acceptable to people of sound
nature, “wf, in order to be authoritative, must fulfil the following
requirements.

Uf (Custom)

(1) “Unf must represent 3 common and recurrent phenomenon
The practice of a few individuals or of a limited number of people
within a large community will not be authoritative, nor will a usage
Of this nature be upheld as the basis of a judicial decision in Shartah
courts. The substance of this condition is incorporated in the Majallah
al-Ahkam al-'Adliyyah, where it is provided that ‘effect is only given
to custom which is of regular occurrence’ (Art. 14). To give an
example, when a person buys a house or a car, the question as to
what is to be included in either of these is largely determined by
eustom, if this is not otherwise specified in the terms of the agreement
More specifically, one would need to refer to the common practice
among estate agents or car dealers respectively. But if no custom can
be established as such, or there are disparate practices of various sorts,
no custom can be said to exist and no judicial order may be based on
it. Custom, in order to be upheld, must not only be consistent but
also dominant in the sense that it is observed in all or most of the
cases to which it could apply. If it is observed only in some cases but
not in other, it is not authoritative, Similarly, if there are two distinct
customary practices on one and the same matter, the one that is
dominant is to be upheld. If, for example, a sale is concluded in a city
where two or three currencies are commonly accepted and the
contract in question does not specify any, the one that is the more
dominant and common will be deemed to apply."

(2) Custom must also be in existence at the time a transiction is
concluded. In contracts and commercial transactions, effect is given
only to customs which are prevalent at the time the transaction is
concluded, and not to customs of subsequent origin. This condition
is particularly relevant to the interpretation of documents, which are
to be understood in the light of the custom that prevailed at the time
they were written. Consequently, a rule of custom which is preva~
Jent at the time the interpretation is attempted will not be relevant if
it only became prevalent after the document was concluded. For it
is generally assumed that documents which are not self-evident and
require clarification can only convey concepts that were common at
the time they were written."

(3) Custom must not contravene the clear stipulation of an agree~
ment. The general rule is that contractual agreements prevail over
custom, and recourse to custom is only valid in the absence of an
agreement. Since contractual agreements are stronger than custom,
should there arise 2 conflict between them it will normally be deter-
mined in favour of the former. If for example the prevailing custom

374 PRINCIPLES OF ISLAMIC JURISPRUDENCE

in regard to the provision of dower (mahr) in marriage requires the
payment of one-half at the time of the conclusion of the contract and
the remainder at a later date, but the contract clearly stipulates the
prompt payment of the whole of the dower, the rule of custom will
be of no account in the face of this stipulation. For custom is only to
be invoked when no clear text can be found to determine the terms
of a particular dispute; and whenever a clear text is in existence,
recourse to custom will be out of the question, To give another
example: the costs of formal registration in the sale of real property
arily payable by the purchaser, But if there is a stipulation
in the contract that specifically requires the vendor to bear those costs,
then the custom will be of ne account and the purchaser will not be
required to pay the costs of registration."

(4) Lastly, custom must not violate the nays, that is, the definitive
principle of the law, The opposition of custom to nass may either be
absolute or partial. If it is the former, there is no doubt that custom
must be set aside. Examples of such conflicts are encountered in the
Bedouin practice of disinheriting the female heirs, or the practice of
usury (ribd’) and wine-drinking, The fact that these are widely practised
is of no consequence, as in each case there is a prohibitory nays, oF a
command that always takes priority, and no concession of allowance
is made for the practice in question, But if the conflict between
custom and text is not absolute in that the custom opposes only
certain aspects of the text, then custom is allowed to act as a limiting
factor on the text, The contract of (stignd’, that is, the order for the
manufacture of goods at an agreed price, may serve as an example
here. According to a hadith, ‘the Prophet prohibited the sale of
non-existing objects but he permitted salam [i.c. advance sale in
which the price is determined but delivery postponed]’."*

rll Yat yy Obs Y) ie ad le ee oe gh

This hadith is general in that it applies to all varieties of sale in which
the object of sale is not present at the time of contract. Salam was
exceptionally permitted as it was deemed to be of benefit to the
people. The general prohibition in this hadith would equally apply to
istignd a5 in this case too the object of sale is non-existent at the time
of contract. But since istignd’ was commonly practised among people
of all ages, the fugaha’ have validated it on grounds of general custom.
The conflict between istisnd’ and the ruling of the hadith is not
absolute, because the hadith has explicitly validated salam. If realisation

are custom

“Uf (Custom) 375

of benefit to the people was the main ground of the concession that
has been granted in respect of salam, then istign@’ presents a similar
case, Consequently, the custom conceming istisnd’ is allowed wo
operate as a limiting factor on the textual ruling of the hadith in that
the hadith is qualified by the custom concerning istisni

Another example where a general text is qualified by custom is
when a person is appointed to act as agent (wak!) for another in respect
of concluding a particular contract such as sale or marriage. The agent's
power to conclude the contract, although not limited by the terms
of his appointment, is nevertheless qualified by the prevalent custom
In the matter of sale, for example, the expected price that represents
the fair market price will be upheld, and the currency of the locality
will be accepted in exchange. According to a hadith, the Prophet is said
to have forbidden conditional sale, that is, sale with conditions that may
not be in agreement with the nature of this contract. An example of
this would be when A sells his car to B for 1,000 dollars on condition
that B sells his house to A for s,000 dollars, The hadith quoted to
this effect provides that the Prophet ‘forbade sale coupled with a
condition’.

by oF AH ple le dl le gil o}
However, the majority of Hanafi and Maliki jurists have validated
conditions that are accepted by the people at large and which repre
sent standard custom, Here again the general prohibition is retained,
but only conditions that are adopted by ‘uff are upheld; the general
terms of the hadith are, in other words, qualified by custom.'*

It would be useful in this connection to distinguish ‘wrf from ijma,
for they have much in common with one another, which is why they
are sometimes confused, But despite their similarities, there are sub-
stantial differences between ‘wf and ijma* which may be summarised
as follows:

(1) ‘Urf materialises by the agreement of all, or the majority of, the
people, and its existence is not affected by the exception or disagree-
ment of a few individuals. ima’, on the other hand, requires for its
conclusion the consensus of all che mujtahidan of the period or the
generation in which it materialises, Disagreement and dissension has
no place in ijmit’, and any level of disagreement among the mujtahidiin
invalidates ijma.

(2) Custom does not depend on the agreement of the muytahidan,
but must be accepted by the majority of the people, including the

376 PRINCIPLES OF ISLAMIC JURISPRUDENCE

mujtahidin, The laymen have, on the other hand, no say in ijma’ on
juridical matters, which require only the participation of the leaned
members of the community

(3) The rules of ‘wsfare changeable, and a custom may in the course
of time give way to another custom or may simply disappear with a
change of circumstance. But this is not the case with (jm. Once an
ima 1s concluded, it precludes fresh ijtihdd on the same issue and ix
not open to abrogation or amendments. ‘Uifon the other hand leaves
open the possibility of fresh ijtihdd, and a ruling of ijtihad that is
founded on ‘uf may be changed even if the ‘uff in which it originates
does not

(4) Lastly, ‘wef requires an element of continuity in that it can only
materialise if it exists over a period of time. limi can, on the other hand,
come into existence whenever the mujtahidin reach a unanimous agree
ment which, in principle, requires no continuity for its conclusion.

Il. Types of Custom

Custom is initially divided into two types, namely, verbal (gawlf) and
actual (fi'lt). Verbal ‘wf consists of the general agreement of the
people on the usage and meaning of words deployed for purposes
other than their literal meaning, As a result of such agreement, the
customary meaning tends to become dominant and the original or
literal meaning is reduced to the status of an exception, There are
many examples in the Qur'dn and Sunnah of words that have been
used for a meaning other than thear literal one, which were as a result
commonly accepted by popular usage. Words such as salah, zakth and
aij have been used in the Qur'dn for purposes other than their literal
meanings, and this usage eventually became dominant to the extent
that the literal meaning of these words was consigned to obscurity.
The verbal custom concerning the use of these words thus originated
in the Qur'in and was subsequently accepted by popular custom.
We also find instances of divergences between the literal and the
customary meanings of words in the Qur'an where the literal mean
ing is applied regardless of the customary meaning. The word walad,
for example, is used in the Qur'an in its literal sense, that is, “offspring”
whether a son or daughter (note stira al-Nisi’, 4:11), bur in its
popular usage walad is used only for sons. Another example is lam,
that is, meat, which in its Qur'anic usage includes fish, but in its
customary usage is applied only to meat other than fish. Whenever
words of this nature, that is, words that have acquired a different

Urf (Custom) 377

meaning in customary usage, occur in contracts, oaths and commer-
cial transactions, their customary meaning will prevail. For example,
when a person takes an oath that he will never ‘set foot’ in so-and-so's
house, what is meant by this expression is the customary meaning,
namely, actually entering the house. In this sense, the person will
have broken the oath if he enters the house while never ‘setting foot’,
such as by entering the house while mounted. But if he only tech-
nically sets his foot in the house without entering it, he will not be
liable to expiation (laffarah) for breaking his oath."

Actual ‘uff consists of commonly recurrent practices that are accepted
by the people, An example of actual ‘w7f is the give-and-take sale, or
bay’ al-ta' ati, which is normally concluded without utterances of offer
and acceptance. Similarly, customary rules regarding the payment of
dower in marriage may require a certain amount to be paid at the
time of contract and the rest at a later date. The validity of this type
cof custom is endorsed by the leyal maxim that reads: ‘What is accepted
by ‘wf is tantamount to a stipulated agreement [al-ma‘rif ‘ufan
‘ea'l-masheit shartan]’. Consequently, actual ‘uff is to be upheld and
applied in the absence of an agreement to the contrary.

*Urf, whether actual or verbal, is once again divided into the two
types of general and special: al-'wrf al-' dom and al-'urf alekihays respec~
tively. A general ‘wf is one which is prevalent everywhere and on
which the people agree regardless of the passage of time. A typical
example of this is bay’ al-ta'ajl to which reference has already been
made, Similarly, the customary practice of charging a fixed price for
entry to public baths is another example of general ‘uf, which is
anomalous with the strict requirements of sale (as it entails consum~
ing an unknown quantity of water) but the people have accepted it
and it is therefore valid. It will be further noted that in their formu-
lation of the doctrine of istihsan, the Hanafi jurists have validated
departure from a ruling of giyas in favour of general ‘uff. This has
already been elaborated in the chapter on istihsan.

*Special custom’ is ‘usf that is prevalent in a particular locality, profes-
sion or trade. By its very nature, it is not a requirement of this type
‘of ‘uff that it be accepted by people everywhere. According to the
preferred view of the Hanafl school, special ‘wf does not qualify the
general provisions of the nass, although some Hanafi jurists have held
otherwise. Consequently, this type of ‘sf is entirely ignored when it
is found to be in conflict with the nays, The general rule to be stated
here is that the abkim of Sharl“ah pertaining to the authority of ‘wf
only contemplate the provisions of general ‘wf, A ruling of qiyds,

378 PRINCIPLES OF ISLAMIC JURISPRUDENCE

especially giyas whose effective cause is not expressly stated in the
nass, that is, giyils ghayr mangi al-“illah, may be abandoned in favour of
a genera ‘wf, but will prevail if it conflicts with special ‘uff. A number
‘of prominent ‘wlamd’ have, however, given the fanwd that special ‘wf

in this respect. The

should command the same authonty as general ‘uf
reason why general ‘uff is given priority over qiyds is that the former
is indicative of the people's need, whose disregard may amount to an
imposition of hardship on them, Some Hanafi jurist like fbn al-Humim
have taught that ‘uff in this situation commands an authority equiva-
lent to that of ijmi, and that as such it must be given prionty over qiyis
Ie is perhaps relevant here to add that Aba Hanifah’s disciple, al-Shayba:
validated the sale of honeybees and silkworms as this was commonly
practised during his time despite the analogical ruling that Abo Hanifah
had given against it on the grounds that they did not amount tw a
valuable commodity (mal), Furthermore, the ‘ulama’ have recorded the
view thar since ‘uff is given priority over qiyds in spite of the fact that
qiyds originates in the nusiiy of the Qur'an and Sunnah, it will a fortiori
be preferred over considerations of public interest (maglahah) that are not
rooted in the musts. Having said this, however, it would seem that
cases of conflict beeween general ‘uff and majlahah would be eather rare
For ‘uff by detinition must be sound and reasonable, and these consid.
erations tend to bring “uff close to maslabah, For after all, ‘wif and
maslabah, each in their respective capacities, serve as a means for the
realisation of public welfare and the prevention of hardship to people.

And lastly, from the viewpoint of its conformity or otherwise with
the Shari'ah, custom is once again divided into the two types of
approved or valid custom (al-‘wrf al-gabih) and disapproved custom
(alu al-fasid). As is indicated in the terms of these expressions, the
approved ‘wf is one which is observed by the people at lange without
there being any indication in the Shari'ah that it contravenes any of
its principles, The disapproved custom is also practised by the people
but there is evidence to show that it is repugnant to the principles of
Shartah, We have already referred to the Bedouin practice of disin~
heriting female relatives and the prevalence of riba’ which, although
commonly practised, are both in clear violation of the Sharf‘ah, and
as such represent examples of al-‘urf alld."

IIL. The Proof (Hujjiyyal)) of ‘Ui

Although the ‘ulama’ have attempted to locate textual authority for
wef in the Que’sn, their attempt has not been free of difficulties. To

Uf (Custom) 379

begin with, reference is usually made to the Quranic text in sira
al-Hajj (22:78) which provides: ‘God has not laid upon you any hard-
ship in religion.’

E> HY Sle Jor ey

This is obviously not a direct authority on the subject, but itis argued
that ignoring the prevailing ‘wef that does not conflict with the nugiis
of Sharf‘ah is likely to lead to inflicting hardship on the people, which
must be avoided. The next dyth that is quoted in support of ‘wif occurs
in sGra al-A'rif (7:199), but although this has a direct reference to
‘wif, difficulties have been encountered in identifying it as its main
authority. This dyah, to which a reference has already been made,
enjoins the Prophet to ‘keep to forgiveness, and enjoin ‘wf, and turn
away from the ignorant’

CAA oe poly Bally ply pial doe

According to the Mliki jurist Shihab al-Din al-Qaraft, this ayah is
explicit and provides a clear authority for ‘uf. According to this view,
“uff is clearly upheld in the Qur'an as a proof of Sharfah and is an
integral part of it.'” The generality of ‘wama', however, maintain the
view that the reference to “uff in this dyah is to the literal meaning of
the word, that is, to the familiar and good, and not to custom as such

Bor then it is added, bearing in mind that approved custom is normally
upheld by people of sound nature and intellect, that the Que’inic
concept of ‘uf comes close to the technical meaning of this word,

The literal or the Quranic meaning of ‘wr, in other words, corrobo-

fates its technical meaning and the two wages of the word are in
essential harmony with one another. The commentators, however,
further add that since the word ‘urfin this dyah can mean many things,
including ‘profession of the faith’, ‘that which the people consider
good’, and of course ‘that which is familiar and known’, as well as “wf
in the sense of custom, it cannot be quoted as a textual authority for
custom as such.” Among the indirect evidence in support of “uf, the
Sulama’ have alo quoted the following saying of the prominent
Companion, “Abd Alli ibn Mas‘ad, chat ‘what the Muslims deem
to be good is good in the sight of God’

Bue p> pb > Op LL

38¢

IPLES OF ISLAMIC JURISPRUDENCE

Although many scholars have considered this to be a badith from the
Prophet, it is more likely, as al-Shitibl points out, to be a saying of
‘Abd Allah ibn Mas‘Gd.* The critics have, however, suggested that

this hadith refers to the approval of ‘al-musliniin', that is, all the

Muslims, whereas ‘wrf varies from place to place, and the approval of

all M t

uslims in its fivour cannot be taken for granted. In response to
this, it bas bee

denotes those among them who possess sound inte!

ther suggested that ‘muslimin’ in this context onl

+t and judge-
ment, and not necessarily every individual member of the Muslim
community

I
seems to be that, noewithstanding the significant role it has played in
the development of the Shariah, it is not an independent
own right, The reluctance of the ‘wlamd’ to recognise ‘wf a a proof
acter of the princip!

¢ upshot of this whole debate over the authoritativeness of ‘uff

proof in its

has been partly due to the circumstantial char
in that it is changeable upon changes of conditions of time and place.
This would mean that the rules of figh that have at one time been
formulated in
change when the same custom is no longer prevalent. The different
fatwits that the later ‘ulama’ of different schools have occasionally given
in opposition to those of their predecessors on the same issues are
reflective of the change of custom on which the fatwa was founded
in the first place. In addition, since custom is basically unstable, it is
often difficult to ascertain its precise terms, These terms may not be
self-evident, and the frequent absence of written records and docu
ments might add to the difficulty of verification.*®

The issue has perhaps become even more complex in modem
times. Owing to a variety of new factors, modern societies have
experienced a disintegration of their traditional pattems of social
organisation, The accelerated pace of social change in modem times
is likely to fiurther undermine the stability of social customs and
organisations, The increased mobility of the individual in terms of
socio-economic status, massive urbanisation, the unprecedented shift
of populations to major urban centres, and so forth, tend to interfere
with the stability and continuity of ‘wf

Another factor that merits attention in this context is the develop
ment of statutory legislation as an instrument of government in
modem times, The attempt to codify the law into self-contained
statutes has to some extent reduced the need to rely on social custom
as the basis of decision-making. But even so, is would be far from
accurate to say that custom has ceased to play an important role both

¢ light of the prevailing custom would be liable to

Un (Custom) 381

as a source of law and a basis of judicial decision-making. ‘This is
perhaps evident from the general reference to custom as a supple-
mentary source of law in the civil codes of many Islamic countries of
today. The typical style of reference to custom in such statutes appears
to be that custom is authoritative in the absence of a provision in the
statute conceming a particular dispute.

The fugaha’ of the later ages (muta’akhkhinin) are on record as having
changed the rulings of the earlier jurists that were based in custom,
‘owing to subsequent changes in the custom itself The examples
given below will show that the jurists have on the whole accepted
f not only as a valid basis of ijtihild but also as the key indicator of
the need for legal reform:

(1) Under the rules of fight, a man who causes harm to another by
giving him false information is not responsible for the damage he has
caused. The rule of figh that applies to such cases is that the mubishir,
that is the one who acted directly, is responsible for the losses
However, owing tw the spread of dishonesty and corruption, the later
fugaha" bave validated a departure from this rule in favour of holding
the false reporter responsible for the losses caused.**

(2) According to Imam Ab0 Hanifah, when the gid? personally
trusts the reliability of a witness who testifies before him, there is no
need for recourse to crossexamination or fazkiyah, This ruling is
based on the hadith stating that "Muslims are ‘udal |i.c. upright and
trustworthy] in relationship to one another’

1 Ae tela Spe O gall!

Aba Hanifah’s ruling was obviously deemed appropriate for the time
in which it was formulated. But the experiences of later times aroused
concer about dishonesty and lying on the part of witnewes. It was
consequently considered necessary to take precautions 40 as to prevent
perjury, and the ‘ulama’ reached the opinion that tazkiyah should be
applied as a standard practice to all witnesses, Abo Hantfah’s disciples
are reported to have given a fanwd in favour of making tazkiyah a
regular judicial practice, Consequently, tazkiyah was held to be a
condition for admitting the testimony of witnewes, and a ruling was
formulated to the effect that no testimony without fazkiyah could
constitute the basis of a court decision.”®

(3) According to the accepted rule of the Hanafi school, which is
attributed co Aba Hanifah himself, no-one was allawed to charge any
fees for teaching the Qur’sn or the principles of the faith, For teach-

Us (Custom) 383

ing these subjects was held to be a form of il, p. 243
reward for it was to be expected fror t Ion", Adil
subsequent exp owed that some peo r

the Qur'an, and an incentive by way of rer d
necessary in order to enc the teaching of E:

he fiaha gave a fatwa in favour of charging { [
Quest al pay

(4) Am jes of f ‘

hange there :
the age 1 missing p Thee, 5

According to the generally a Dated a3; Iona

¢ declared dead until he rea conte af mt :

would normally be expectec y the jurist tg aie hp alae Le
Hanafi school have variously dete seventy cha = A eA SS hex tasveiaett ole
ind one hundred, and their respec ve tak hat din is the saying of “Abd Alls fn Ma 3 (Uhh, L344) has quoted
sideration the changes of experience and cond preva ma
the time the new rulings were formulate 2. CE end", Adil, p 402

(3) And lastly, in the area of transactions, the concept of

al-fahish, that is radical discrepancy between the market price of a : ei retn enpnenenyer

mmodity and the actual price charged to the customer, is determined

disc

ith reference to ‘wef. To ascertain what mai

v n pancy - L
particular transaction amounts to @ al-faltish is determine a3. Sibiek, Medthal, p. 14
reference to the practice among tradesmen and 8. Ibid

ngaged in similar transactions, Since these practices are to
hange, the changes are in turn reflected in the deter c at
night amount to al-ghabr al-fabish

NoTes

4. Badedn, Ul p. 334: Zindely "Urf and Law’, po Ind, Adil, 38
Us ps 334

Tatars, Tuffy, (Balsa, 1323-29), IV Sch,“ p. 6

anit, Adil, p. 408 :

& CE Ziadeh, "Urf and Law’, pi

§. The Moelle (Fyver's trans), art. 96; AbO Zahrah, Usal, p. 216; Mahmassn

Falah, p. 134

6. Stboni, Ma

8, Ziadeh, "Url and Law’, p

Falah, p. 132

CHAPTER FIFTEEN

Istishab (Presumption of Continuity)

Literally, istishab means ‘escorting’ of ‘companionship’. Technically
istishab denotes a rational proof that may be employed in the absence
of other indications; specifically, those facts or rules of law and reason,
whose existence or non-existence had been proven in the past, and
which are presumed to remain so for lack of evidence to establish any
change.' The technical meaning of istishdb relates to its literal mean-
ing in the sense that the past ‘accompanies’ the present without any
interruption or change, [stishab is validated by the Shifi't school, the
Hanballs, the Zihiris and the Sht'ah Imamiyyah, but the Hanafis, the
Malikts and the mutakalliman, including Abd al-Husayn al-Basri, do not
consider it a proof in its own right. The opponents of istighdb are of
the view that establishing the existence of a fact in the past is no proof
of its continued existence, The continued existence of the original
state is still in need of proof in the same way as the claim that seeks
to establish that the original condition has changed.”

For the Shafi'ls and the Hanbalis, istishdb denotes ‘continuation of
that which is proven and negation of that which had not existed’
Itighab, in other words, presumes the continuation of both the posi-
tive and the negative until the contrary is established by evidence. In
its positive sense, istighdb requires, for example, that once a contract
of sale (or of marriage for that matter) is concluded, it is presumed to
remain in force until there is a change, Thus the ownership of the
purchaser and the marital status of the spouses are presumed to
continue until a transfer of ownership or dissolution of marriage can
be established by evidence, Since both of these contracts are perma-
nently valid under the Shariah and do not admit of any time limits

Istishab (Presumption of Continuity) 386

it is reasonable to presume their continuity until there is evidence to
the contrary. A mere possibility that the property in question might
have been sold, or that the marriage might have been dissolved, is
not enough to rebut the presumption of istishab.! However, if the
law only validates a contract on a temporary basis, such as lease and
hire (ijdrah), then istishab cannot presume its continuity on a perma-
nent basis, The contract will continue to operate within the specified
period and terminate when the period expires,

Lstishab also presumes the continuation of the negative. For example,
A purchases a hunting dog from B with the proviso that it has been
trained to hunt, but then A claims that the dog is untrained, A's claim
will be acceptable under istishdb unless there is evidence to the
contrary, for istishdb maintains the natural state of things, which in
the case of animals is the absence of training.*

Presumption of continuity under istishab is different from the con:
tinued validity of a rule of law in a particular case. The false accuser,
for example, may never be admitted as a witness, a rule which is laid
down in a clear Que’inic text (al-NOr, 24:5). The permanent validity
of the hulem in this case is established by the legal text, which is in no
need of any presumption. [stishdb only applies when no other evidence
is available, which is obviously not the case when there is a clear text
that could be invoked,?

Since istishdb consists of a probability, namely the presumed conti-
nuity of the stanus quo ante, it is not a strong ground for the deduction
of the rules of Shariah. Hence when istishdb comes into conflict with
another proof, the latter takes priority. As it is, istishdb is the last ground
of fanwsds when the jurist is asked about the ruling of a particular case,
he must first search for a solution in the Qur’in, the Sunnah, consen-
sus of opinion and qiyds. If a solution is still wanting, he may resort
tw istishab in either its positive or negative capacities. Should there be
doubt about the non-existence of something, it will be presumed to
exist, but if the doube is in the proof of something, the presumption
will be that it is not proven. Thus with regard to facts and situations
that are known to have been present or absent in the past, istishab
presumes its non-existence until the claim is proven by evidence. But
if someone claims that he has cleared and paid the debt he owed to
another, istishab will presume the opposite of the claim until evidence
shows otherwise. In the case of a missing person, for example, the
nature of the situation is such that no other proof of Shari'ah could
be employed to determine the question of his life or death, Since the
main feature of the doubt concerning 3 missing person is the possi-

386 PRINCIPLES OF ISLAMIC JURISPRUDENCE

bility of his death, istishab will presume that he is still alive. But in
the event of an unsubstantiated claim, when for example A claims
the doubt here is concerned with

that B owes him a sum of mone’
the proof of the existence of a debt, which will be presumed that it
is not proven.

With regard to the determination of the rules of law that may be
applicable to a particular issue, the presumption of istishdb is also
guided by the general norms of the Shariah. The legal norm concem~
ing foods, drinks and clothes, for example, is permissibility (ibahah),
When a question arises as to the legality of a particular kind of
beverage or food, and there is no other evidence to determine its
value, recourse may be had to istishab, which will presume that it is
permissible. But when the norm in regard to something is prohibi
tion, such as cohabitation between members of the opposite sex, the
presumption will be one of prohibition, unless there is evidence to

prove its legality.

Istishab is supported by both shart and rational (‘agli) evidences
Reason tells us that in God's order of creation and in popular custom,
it is normal to expect that pledges, contracts and laws will probably
continue to remain operative until the contrary is established by
evidence. It is equally normal to expect that things that had not
existed will probably remain so until the contrary is proved. When
reasonable men (‘wala’) and men who comply with the accepted norms
of society (ahi al-'usf) have known of the existence or non-existence
of something, as al-Amidi observes, from that point onwards they
tend to formulate their judgements on the basis af what they know,
until they are assured by their own observation or evidence that there
isa change,’ Reason also tells us not to accept claims unsubstantiated
by evidence that suggest a change in a status quo which is otherwise
expected to continue. Hence a mere claim that a just person (‘adil)
has become a profligate (fig) will be of no account, and the person
will be presumed to be ‘adil until the contrary is established, Similarly,
when a student is admitted and registered for a degree course, his
status as a student remains unchanged until there is evidence to suggest
that this is no longer the case, But until then there is no need for him
to prove his status every week or every month."

To presume the continuity of something that might have been
present of absent in the past, as al-Amidi points out, is equivalent to
a zann, which is valid evidence in juridical (shar't) matters, and action
upon it is justified.” The rules of Shariah continue to remain valid
until there isa change in the law or in the subject to which it is

Jstishib (Presumption of Continuity) 387

applied. The law, for example, has forbidden the consumption of wine,
a ruling which will remain in force until there is a state of emergency
or the wine loses its intoxicating quality, such as by being changed
into vinegar.

I. Varieties of Istishab

From the viewpoint of the nature of the conditions that are presumed
to continue, istishdh is divided into four types as follows:

(1) Presumption of original absence (istishab al-‘adam al-aslf), which
means that a fact or rule of law that had not existed in the past is
presumed to be non-existent until the contrary is proved. Thus a
child and an uneducated person are presumed to remain so until there
isa change in their status, for example by attaining majority or obtain-
ing educational qualifications respectively, Similarly if A, who is a
trading partner to B, claims that he has made no profit, the presump-
tion of absence will be in A’s favour unless B can prove otherwise.
Another area that is determined by the presumption of original
absence is the original freedom from liability, or the presumption of
innocence, which will be separately discussed later.’

(2) Presumption of original presence (istishdb al-unjad al-aslt), This
vaniety of istishdb takes for granted the presence or existence of that
which is indicated by the law or reason. For example, when A is
known to be indebted to B, A is presumed such until i is proved that
he has paid the debt or was acquitted of it. Provided that B's loan to
Ais proven in the first place as a fact, this is sufficient to give rise to
the presumption of its continuity and B need not prove the conti-
auity of the loan in question every day of the month. Similarly, under
the presumption of original presence, the purchaser is presumed liable
to pay the purchase price by virtue of the presence of the contract of
sale until it is proved that he has paid it. By the same token, a husband
is liable to pay his wife the dower (mah) by virtue of the existence
of a valid marriage contract. In all these instances, istishab presumes
the presence of a liability or a right until an indication to the contrary
4s found. The ‘wlama’ are in agreement on the validity of this type of
istishab, which must prevail until the contrary is proved."*

(3) bstishab al-hulem, or istishab which presumes the continuity of
the general rules and principles of the law. As earlier stated, istishab
is not only concerned with the presumption of facts but also with the
established rules and principles of the law. Istishab thus takes for
granted the continued validity of the provisions of the Shar ah in

388 PRINCIPLES OF ISLAMIC JURISPRUDENCE

regard tw permissbility and prohibition (halal and bardm). When there
is a ruling in the law, whether prohibitory or permissive, it will be
presumed to continue until the contrary is proved. But when there
is no such ruling available, recourse will be had to the principle of
neral norm of Shariah law concerning a matter

ibthah, which is the
that is deemed beneficial and free of evil consequences. Hence when
the law is silent on a matter and it is not repugnant to reason, it will
be presumed to be permissible. This is the majority view, although
some Mu‘tazilah have held a variant opinion, which is that the general
norm in Shari'ah is prohibition unless there is an indication to the
contrary. The principle of permissibility (ibdbah) originates in the
Que'sn, in particular those of its passages which subjugate the earth
and its resources to the welfare of man. Thus we read in siira al-Bagarah
19): “It is He who has created for you all that is in the earth’

Lee 251 gb SS ale gill

and in stira al-Jathiyah (45:13): ‘God has subjugated to you all that is
in the heavens and in the earth.”

PM Gly cpa DLS ay

These Qur’inic declarations take for granted that man should be able
to utilise the resources of the world around him co his advantage,
which is another way of saying that he is generally permitted to act
in the direction of securing his benefits unless he has been expressly
prohibited. Hence all objects, legal acts, contracts and exchange of
goods and services that are beneficial to human beings are lawful on
grounds of original ibabah,"* But when the legal norm in regard tw
something is prohibition, then istishdb presumes its continuity until
there is evidence to suggest that it is no longer prohibited.

(4) btishab al-wasf, or continuity of attributes, such as presuming
clean water (putity being an attribute) to remain so until the contrary
is established to be the case (for example through a change in its
colour of taste). Similarly, when a person makes an ablution to
perform the yelah, the attribute of ritual purity (fahdrah) is presumed
to continue until it is vitiated. A mere doubt that it might have
been vitiated is not sufficient to nullify fahdrah, By the same token, a
guarantor (aff al-kafalah being a juridical attribute) remains respon-
sible for the debt of which he is guarantor until he or the debtor pays
it, or the creditor acquits him from payment.”

Lstishab (Presumption of Continuity) 389

The jurists are in agreement on the validity, in principle, of the first
three types of istishab, although they have differed on their detailed
implementation, as we shall presently discuss. As for the fourth type of
istishdb, which relates to attributes, whether new or well-established.
this is a subject on which the jurists have disagreed. The Shafi"i and
the Hanball schools have upheld it absolutely, whereas the Hanafi and
Maliki schools accept it with reservations. The case of the missing
person is discussed under this variety of istighib, as the question is
mainly concemed with the continuity of his life-life being the attnbute.
Since the missing person (mafgid) was alive at the time when he disap-
peared, he is presumed to be alive unless there is proof that he has
died. He is therefore entitled, under the Shifi'l and Hanbali doctrines,
to inherit from a relative who dics while he is still a missing person.
But no-one is entitled to inherit from him for the obvious reason that
he is presumed alive, Yet under the Hanafl and Maliki law, the miss-
ing petson neither inherits from others nor can others inherit from
him. The Hanafls and Malikis accept istishab al-wagf only as a means
of defence, that is, to defend the continued existence of an attribute,
but not as a means of proving new nights and new attributes, Istishab
cannot therefore be used as a means of acquiring new nights for the
misiing person, but can be used in order to protect all his existing
rights. To use a common expression, istighdb can only be used as a
shield, not as a sword. If, for example, the missing petson had owned
property at the time of his disappearance, he continues to be the
‘owner. Similarly, his marital rights are presumed to continue, just as
he remains responsible for discharging his obligations until his death
is established by evidence of by a judicial decree. But as long as he
remains a missing person, he will not be given a share in inheritance
‘of bequest, although a share will be reserved for him until the facts
of his life or death are established. If he is declared dead, the reserved
share will be distributed among the other heirs on the assumption that
Ihe was dead at the time of the death of his relative. Upon declaration
of his death his own estate will be distributed among his heirs as of
the time the court declares him dead. This is the position under the
Hanafi and Maliki schools, which maintain that although the mafgiad
is presumed to be alive, this is only a presumption, not a fact, and may
therefore not be used as a basis for the creation of new nghts.'* The
‘question may arise: why can his heirs not inherit from the mafgid? If
nothing is certain, perhaps his heirs could be assigned their shares, or
the shares may be reserved in theit names until the facts are known. In.
response to this, the Hanafls invoke the principle of ‘original absence’,

300 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Istishab (Presumption of Continuity) 391

which means here that a right to inheritance is originally absent
and will be presumed so until there is positive proof that it has
materialised,

The Shafi‘ts and the Hanbalis have, on the other hand, validated
istishab in both its defensive (li-daf") and affirmative (li-kasb) capacities,
that is, both as a shield and as a sword. Hence the mafgad is presumed
to be alive in the same way as he was at the time of his disappear
ance right up to the time when he is declared dead. The mafgid is
not only entitled to retain all his rights bur can acquire new rights
such as gifts, inheritance and bequests.”

It thus appears that the jurists are in disagreement, not necessarily
on the principle, but on the detailed application of istishab. The Hanafis
and Milikis who accept istishdb on a restricted basis have argued that
the existence of something in the past cannot prove that it continues
to exist, They have further pointed out that an over-reliance on istishab
is likely to open the door to uncertainty, even conflict, in the deter-
mination of ahkdm. The main area of juristic disagreement in this
connection is the identification of what exactly the original state that
is presumed to continue by means of istishab might be. This is a ques~
ton that permeates the application of istishdb in its various capacities,
which is perhaps why the Hanbalt scholar fbn al-Qayyim al-Jawziyya
is critical of over-reliance on istishdb and of those who have employed
it more extensively than they should.’ The following illustrations,
which are given in the context of legal maxims that originate in istishdb,
also serve to show how the ‘ulama” have differed on the application
of this doctrine to various issues. Some of the well-known legal maxims
that are founded in istishdb may be outlined as follows

(1) Certainty may not be disproved by doube (al-yayin la yazil bi'l-
shakk), For example, when someone is known to be sane, he will be
presumed such until it is established thar he has become insane. The
presumption can only be set aside by certainty, not by a mere doubt
Similarly, when a person eats in the early morning during Ramadin
while in doubt as to the time of dawn, his fast remains intact and no
belated performance (gada’) is necessary by way of compensation. To
identify the two elements of the maxim under discussion, namely the
certainty and doubt in this example, night represents certainty whereas
daybreak is the state of doubt, and the former prevails over the latter
However, the same rule would lead us to a totally different result if
it were applied to the situation of a person who ends his fast late in
the day in Ramadan while in doubt as to the occurrence of sunset.
In this case, his fast is vitiated and a belated performance would be

required in compensation. For the certainty that prevails here is the
daytime, which is presumed to continue, while the onset of night is
in doubt. To say that certainty prevails over doubt in this case means
that the fast has been terminated during the day, which is held to be
the prevailing state of certainty."*

To illustrate some of the difficulties that are encountered in the
implementation of the maxim under discusion, we may give in
example the case of a person who repudiates his wife by faldg but is
in doubt as to the precise terms of his pronouncement: whether it
amounted to a single or a triple faldg. According to the majority of
Jarists, only a single faldg takes place, which means that the husband
is still entitled to revocation (raj‘a) and may resume normal marital
relations, Imam Malik has, on the other hand, held that a tnple
talag takes place which would preclude the right to revocation. The
difference between the majority opinion and that of Imam Milik
arises from the variant interpretations that they give to the question
of certainty and doubt. The majority view presumes the marriage to
be the state of certainty which would continue until its dissolution is
established by evidence. The doubt in this case is the pronouncement
of faldg. The doubtful falag, according to the majority, may not be
allowed to disprove a certain fact, The marriage is certain and the
falaq is doubeful, hence the former is presumed to continue.

Imam Malik, on the other hand, considers the occurrence of a
divorce to be the certainty in this case, What is in doubt is the
husband's right to the revocation of the fall. As for determining
the precise number of yaldys, which is crucial to the question of
revocation, Imam Malik holds that the right to revocation cannot
be established by a mere doubt. Hence the husband has no right to
revocation, which means that the divorce is final.'*

While the majonty of jurists consider marriage to be the certain
factor in this case, for Imam Malik it is the actual pronouncement of
1alaq, regardless of the form it might have taken, which represen the
state of certainty and the basis on which istishab must operate, While
commenting on these differences, both Ibn al-Qayyim al-Jawziyya
and Aba Zahrah have considered the majority decision to be preferable,
The marriage in this case must therefore not be allowed to be
disproved by a doubtful salag.””

To give yet another example: when a man repudiates one of his
two wives, but is not certain as to which one, according to the
Malikis the certain fact is that 2 falaq has been pronounced, while the
uncertainty in this case is the identity of the divorcee. Both are

392 PRINCIPLES OF ISLAMIC JURISPRUDENCE

divorced on grounds of istishab, which establishes that certainty must
prevail over doubt. For the majority of ‘ulamd’, however, the certain
fact is that the man has two wives, in other words, the existence of a
valid marriage in respect of both. The doubt concerning the identity
of the divorcee must not be allowed to disprove the state of certainty,
namely the marriage. Hence neither of the two are divorced.** Once
again the juristic disagreement in this case arises from the different
perception of the ‘ulama’ in identifying the state of certainty on which
the rules of istishdb must operate.

(2) Presumption of generality until the general is subjected to
limitation is another maxim that originates in istighdb. The general
(Camm) must therefore remain ‘damm in. its application undl it is
qualified in some way

Just as a general text remains general until it is specified, so is
the validity of that text, which is presumed to continue until it is
abrogated, This would mean that a legal text remains valid and must
be implemented as such unless it is abrogated or replaced by another
text.* While discussing the maxim under discussion, al-Shawkini
records the variant view held by some ‘ulama’ to the effect that the
rule of law in these situations is established through the interpreta
tion of words and not by the application of istishdb.”? To say that a
text is general or specified, or that a text remains valid and has not
been abrogated, is thus determined on grounds of interpretation of
words and not by the apphcation of istishdb, For example, the
Qur'inic rule which assigns to the male a double share of the female
in inheritance (al-Nist’, 4:11) is general and would have remained so
if it were not qualified by the hadith that ‘the killer does not inherit’.**

ploy

Similarly, the practical Sunnah concerning the direction of the giblah
remained in force until it was abrogated by the Qur'snic injunction
in sa al-Bagarah (2:144). which changed the giblah from Jerusalem
to the Ka'bah. This is all obvious so far, and perhaps al-Shawkinl is
right in saying that there is no need for a recourse to istishib in these
cases. What istighab might tell us in this context may be that in the
event where there is doubt as to whether the general in the law has
been qualified by some other enactment, or when there is doubt as
to whether the law on a certain point has been abrogated or not,
istishib would presume the absence of specification and abrogation
until the contrary is established by evidence.

Istishab (Presumption of Continuity) 393

(;) Presumption of original freedom from liability (bard'ah al-dhimmah
al-asliyyah), which means freedom from obligations until the contrary
is proved. No penion may, therefore, be compelled to perform any
obligation unless the law requires so, For example, no-one is required
to perform the hajj pilgrimage more than once in his lifetime or t0
perform a sixth salah in one day, because the Shartah imposes no such
lability. Similarly, no one is liable to punishment until his guilt
is established through lawful evidence."” However, the detailed
implementation of this principle too has given rise to disagreement
berween the Shifi‘T and Hanafi jurists, To give an example, A claims
that B owes him fifty dollars and B denies it, The question may arise
as to whether a settlement (sul) after denial is lawful in this case. The
Hanafis have answered this in the affirmative, but the Shafi'ls have
held that a settlement after denial is not permissible, The Shifi'ts argue
that since prior tw the settlement B denied the claim, the principle of
original freedom from liability would thus apply to him, which means
that he would bear no liability at all. As such it would be unlawful for
A to take anything from B, The settlement is therefore null and void.
The Hanafls have argued, on the other hand, that B's non-liability
after the claim is not inviolable. The claim, in other words, interferes
with the operation of the principle under discussion. B can no longer
be definitely held to be free of lability; this being so, a settlement is
permissible in the interests of preventing hostility between the
parties.”

(4) Permissibility is the original state of things (al-asl ff al-ashya!
al-ibahah). We have already discussed the principle of ibahah, which is
a branch of the doctrine of istishab. To recapitulate, all matters that
the Sharf‘ah has not regulated to the contrary remain permissible. They
will be presumed so unless the contrary is proved to be the case. The
‘one exception to the application of ihibal is relationships between
members of the opposite sex, where the basic norm is prohibition
unless it is legalised by marriage. The Hanbalis have given ibithah greater
prominence, in that they validate it asa basis of commitment (ilfizdm)
unless there is a text to the contrary. Under the Hanball doctrine, the
norm in “ibddat is that they are void (bat) unless there is an explicit
command to validate them. But the norm in regard to transactions
and contracts is that they are valid unless there is a mass to the
contrary” To give an example, under the Hanbali doctrine of halal,
prospective spouses are at liberty to enter stipulations in their marriage
contract, including a condition that the husband must remain
monogamous. The Hankalis are alone in their ruling on this point,

194 PRINCIPLES OF ISLAMIC JURISPRUDENCE

as the majority of jurists have considered such a condition to amount
to a superimposition on the legality of polygamy in the Shariah. The
provisions of the Shari'ah must, according to the majority, nor be
circumvented in this way. The Lawgiver has permitted polygamy and
it is not for the individual to overrule it. The Hanbalis have argued,
on the other hand, that the objectives of the Lawgiver in regard to
matriage are satisfied by monogamy. As it is, polygamy is a permis-
sibility, not a requirement, and there is no nags to indicate that the
spouses could not stipulate against it. The stipulation is therefore valid
and the spouses are committed to abide by it

Conclusion

Isighab is not an independent proof or a method of juristic deduction
in its own right, but mainly functions as ¢ means of implementing an
existing indication (dali) whose validity and continued relevance are
established by the rules of istishib. This might explain why the ‘wlama’
have regarded istishdb as che last ground of fatuil, and one that does
not command priority over other indications, The Malikis have relied
very little on it as they are known for their extensive reliance on other
proofs, both revealed and rational, in the development of the rules of
Shari‘ak;; so much so that they have had little use for istishab. This is
also true of the Elanafl school of law, which has only rarely invoked
istishdb as a ground for the determination of legal rules. Jstishab is
applicable either in the absence of other proofs or as a means of estab=
lishing the relevance of applying an existing proof. It is interesting to
note in this connection the fact that istishab is more extensively applied
by those who are particularly strict in their acceptance of other rational
proofs. ‘Thus we find that the opponents of giyds, such as the Zahiris
and the Akhbarl branch of the Shi'ah Imamiiyyah, have relied on it most,
and have determined the abkim on its basis in almost all instances
where the majority have applied giyds. Similarly, the Shafi‘ls, who
reject istilisin, have relied more frequently on istighdb than the Hanatis
and the Milikis. In almost all cases where the Hanafis and Malikis
have applied istihsan or custom (‘wf}, the Shifi'ls have resorted to
istishab,*

Lstishab is often described as a principle of evidence, as it is mainly
concerned with the establishment or rebuttal of facts, and as such
it is of greater relevance to the rules of evidence. The application of
istithab to penalties and to criminal law in general is to some extent
restricted by the fact that these areas are mainly govemed by the

Istishab (Presumption of Continuity) 395

definitive rules of Shariah or statutory legislation. The jurists have on
the whole advised caution in the application of penalties on the basis of
presumptive evidence only. Having said this, however, the prinaple of
the original absence of liability is undoubtedly an important feature
of istishdb which is widely upheld not only in the field of criminal
Jaw but also in constitutional law and civil litigations generally. This is
perhaps equally true of the principle of ibahah, which is an essential
component of the principle of legality, also known as the principle
of the rule of law. This feature of istishdb is once again in harmony
with the modem concept of legality in that permissibility is the norm
in areas where the law imposes no prohibition

I shall end this chapter by summarising a reformist opinion con-
coming istishab, In bis booklet entitled Tajdid Usil al-Figh al-Islimi,
Hasan Turabi highlights the significance of istishdb and calls for a fresh
approach to be taken to this doctrine. The author explains that istishab
has the potential to incorporate within its seope the concept of natural
justice and the approved customs and mores of society.

According to Turabi, istishdb derives its basic validity from the belief
that Islam did not aim at establishing a new life on earth in all of its
dimensions and details, nor did it aim at nullifying and replacing all
the mores and customs of Arabian society. The Prophet did not take
an attitude of opposition to everything that he encountered, but
accepted and allowed the bulk of the existing social values and sought
to reverse or replace only those that were oppresive and unacceptable.
We also find in the Qur'an references to amr bi al-'uyf, ot acting in
accordance with the prevailing custom, unless it has been specifically
nullified or amended by the Shar ah of Islam. Similarly, when the
Qur‘in calls for the implementation of justice, beneficence (ihudn) and
fairness in the determination of disputes, it refers, among other things,
to the basic principles of justice that are upheld by humanity at large
and the good conscience of decent individuals. Life on carth is thus
a cumulative construct of moral and religious teachings, aided and
abetted by enlightened human nature, which seeks to rectify what it
deems to be wrong, unjust and wndesirable. The Shariah has also left
many things unregulated and, when this is the case, human action in
regard to them may be guided by good conscience and the general
teachings of divine revelation. This is the substance, as Turabi explains,
of the juridical doctrine of isisbdb. In its material parr, istishab declares

ty to be the basic norm in Shar ah; that people are deemed
to be free of liability unless the law has determined otherwise; and that
human beings may utilise everything on the earth for their benefit

3006 PRINCIPLES OF ISLAMIC JURISPRUDENCE

it istishab, as

aw, It thus appears th

nce and recognition ¢

n

TES
hawkant, Ini, poatys Amid, J V, 137
2. Shawkin, tnh Aba Zahab p 0s
bn Qu 1208 al, p. 208
bid.
hawkdnt, [nh Abo Zabrah pay
Aric, Mk, 1V, 125; Badean, Uvil, po at
4, CF. Abo Zaheah, Uvil p. 298
yp Ariat, fan, IV, 137
10. Shawkdnt, leshid, p 298% Badin, Usd, p. 2x8; AbO Zahrah, © 26
12, Abo Zabea P uf, “lim, p. 92 Usa, p. 219% Kho
thn Quyyim, Flim, 1, 295; Badri, Usd, p
& Shawkint, tha p, 254; Al hs, Cl p Unit p. 335: Coub
15, Zuaye, Uil, 1, ¥86
16, Shawhant, ddd, pty
17: thn Quyyimn, flim, 1, 29%
1K, Madan, Usa, pp. 220-1
1a, thn Qoyyim, Fido, 5, 296% ADO Zahreab, Us, p 238
hid
1. Abo Zaheah, Uji, p. 259
Khudarl, Ul, p. 356; Mahmamant, Peluafih, p- 9
3. Shawhani, Inhad. p. 238

4. Nbr Maja, Suman, 1, 949, Madtoh ner 2795: ab-CDArin, Shomam (KiNG al-Fartid)

1M
25. Shawkinl, Jnhid, p. 28; Mahmanint, Fab

P- 90, The principle
am liability appears an abSuyOti's Ashhih vas abNs

ak Adhyyah (Arc. 8)

ayr, Usd, IV, 08

him, 1, 9

ir and in. the Majalla

Geedom

CHAPTER SIXTEEN

Sadd al-Dhara’i® (Blocking the Means)

Dharfah (pl. dhara’?) is a word synonymous with wasilah, which
signifies the means to obtaining a certain end, while sadd literally
means ‘blocking’. Sadd al-dhari’i* thus implies blocking the means to
an expected end that is likely to materialise if the means towards it is
not obstructed. Blocking the means m
imply blocking the means to evil, not to something good. Although
the literal meaning of sadd al-dhard'i’ might suggest otherwise, in its
juridical application, the concept of sadd al-dhard'i' also extends to
“opening the means to beneficence’, But as a doctrine of jurispru:
dence, it is the former meaning, that is, blocking the means to evil, that
characterises sadd al-dhard’t’. The latter meaning of this expression is
not particularly highlighted in the classical expostions of the doctrine,
presumably because opening the means to beneficence is the true
purpose and function of the Sharah as a whole and as such is not

ust necessarily be understood to

peculiar to sadd al-dhand’é
When the means and the end are both directed toward beneficence
and maslahah, and are not explicitly regulated by a clear injunction
(nasi), the matter is likely to fall within the ambit of qiyds, maplabah,
or istihsdn, etc. Similarly, when both the means and the end are directed
towards evil, the issue is likely to be governed by the general rules of
Shari'ah, and x recourse to sadd al-dhari't’ would seem out of place
Based on this analysis, it appears that as a principle of jurisprudence,
sadd alsdhara'i' applies when there is a discrepancy between the means
and the end on the good-neutral-evil scale of values. A typical case for
the application of sadd al-dhara’?’ would thus arise when a lawful means
is expected to lead to an unlawful result, or when a lawful means

398 PRINCIPLES OF ISLAMIC JURISPRUDENCE

that normally leads to a lawful result is used to procure an unlawful
end.

Both the means and the end may be good or evil, physical or moral,
and they may be visible or otherwise, and the two need not neces
sarily be present simultaneously. For example, khahoah, or illicit privacy
between members of the opposite sexes, is unlawful because it consti
tutes a means to 2ind whether or not it actually leads to it. All sexual
overtures that are expected to lead to zind are similarly forbidden by
virtue of the certainty or likelihood that the conduct in question would
lead to zind, Dhard’t’ may also consist of the omission of a certain
conduct such as trade and commercial transactions during the time
of the Friday congregational prayer, The means that obstruct the said
prayer, in other words, must be blocked, that is, by abandoning trade

at the specified time.

The whole concept of sadd al-dhara't’ is founded in the idea of
preventing an evil before it actually materialises. It is therefore not
always necessary that the result should actually take place. It is rather
the objective expectation that a means is likely to lead to an evil result
that renders the means in question unlawful even without the reali~
sation of the expected result. This is the case in both the examples
given above; khalwah is thus unlawful even without actually leading
to zind, and trading during the time of the Friday prayer is unlawful
whether or not it actually hinders the latter. Purthermore, since sadd
al-dhara'i' basically aims to prevent an evil before its occurrence, the
question of the intention to procure a particular result cannot be a
reliable basis for assessing the means that lead to that result, AbO
Zahrah has aptly observed that the nature and value of the means is
determined by looking at the purpose that it pursues, regardless of
whether the latter is intended or otherwise. When a particular act is
deemed to lead to a certain result, whether good ot evil, it is held to
be the means toward that end, The question of the intention of the
perpetrator is, as such, not relevant to the objective determination of
the value of the means. It is rather the expected result that determines
the value of the means. If the result is expected to be good and
praiseworthy, so will be the means towards it, and if it is expected
to be blameworthy the same will apply to the means regardless of
the intention of the perpetrator, of the actual realisation of the result
itself. This is, for example, borne out by the Qur'inic text that
forbids the Muslims from insulting idol-worshippers, notwithstand-
ing the inherent enormity of idal-worshipping ot the actual intention
behind it. The text thus proceeds: ‘And insult not the associators lest

Sadd al-Dhara’i’ (Blocking the Means) 399

they [in return] insult God out of spite and ignorance’ (al-An‘im;
6: 108).

ple phe Ne SN pd I O92 oe Dyes opi Lyn Vy

The means to an evil is thus obstructed by putting a ban on insult-
ing idol-worshippers, a conduct which might otherwise have been
permissible and even praiseworthy, as it would mean denunciation of
falsehood and firmness of faith on the part of the believer. Thus a means
which is intrinsically praiseworthy leads to an evil result, and acquires
the value of the latter. Furthermore, the prohibition in this example
is founded on the likelihood that the associatory will insult God as a
result. It is, in other words, the expected result that is ken into
account. Whether the latter actually materialises or not is beside the
point: insulting the idols and their worshippers is thus forbidden
fegardless of the actual result that such conduct may lead to. Similarly,
the intention to bring about a particular result is irrelevant w the
prohibition under discussion. Insulting idol-worshippers is thus forbid-
den even when a Muslim does not intend to bring about the expected
result, that is, an insult to God; his intention may be good or bad, in
either case, insulting the idols and their worshippers is forbidden since
itis, on an objective basis, most likely to provoke the expected result.’

The doctrine of sadd al-dhard't* accords with the basic objectives of
the Lawgiver. Hence the general rule regarding the value of the means
in relationship to the end is that the former acquires the value of the
latter. Al-Shitibi has aptly observed that the Lawgiver has legalised
certain forms of conduct and prohibited others in accordance with the
benefit or harm that they lead to. When 3 particular act or form of
conduct brings about a result that is contrary to the objectives of the
Lawgiver, then the latter will be held to prevail over the former.* If
the means, in other words, violate the basic purpose of the Shari'ah,
they must be blocked. The laws of Shariah are for the most part
distinguishable in regard to their objectives (magasid) and the means
that procure or obstruct those objectives. The means are generally
viewed in the light of the ends they are expected to obtain, and it is
Jogically the latter that prevail over the former in that the means follow
their ends, not vice vena. Normally the means to wijib become wajib
and the means to harim become hardm. Means may at times lead to
both 3 good and an evil, im which case if the evil (mafiadah) is either
equal to or greater than the benefit (maslahah), the former will prevail
‘over the latter. This is according to the general principle that

400 PRINCIPLES OF ISLAMIC JURISPRUDENCE

‘preventing an evil takes priority over securing a benefit’! Sadd
aledhara’i' chus becomes a principle of jurisprudence and a method of
deducing the juridical ruling (hum shar'f) on a certain issue or type
of conduct that may not have been regulated in the existing law but
whose ruling can be deduced through the application of this principle.

In addition to the Qur’inie dyah (al-An‘im, 6:108) on the prohibi~
tion of insulting idols as referred to above, the ‘ulama’ have quoted as
an authority for sadd al-dhard’’ the Qur’anic passage in sOra al-Bagarah
(a: 104), as follows: ‘O believers! Address not the Prophet by the
word ‘ni'ind’, but address him respectfully and listen to him.’

Uyasely U Ja IS dy Waly IS Y Apel cal Ul

The reason for this prohibition was that the word ‘r'ind’, being a
homonym, had two meanings, one of which was "please look at us”
or ‘attend to us’, while with a slight ewist the same word would mean
‘our shepherd’. The Jews used to insult the Prophet with it, and in
order to block the means to such abuse, the Muslims were forbidden
from using that form of address for the Prophet despite their
good intentions and the fact that the word under discussion was not
inherently abusive.*

Authority is also found for the principle of sadd al-dhard’t’ in the
Sunnah, especially the ruling in which the Prophet forbade a creditor
from taking a gift from his debtor lest it became a means to usury and
the gift a substitute for riba’, The Prophet also forbade the killing
of hypocrites (al-mundfiqin) and people who were known to have
betrayed the Muslim community during battles. It was feared that
killing such people would become a means to evil, namely, of giving
rise to a rumour that 'Mubammad kills his own Companions’, which
would, in turn, provide the enemy with an excuse to undermine the
unity of the Muslim community, Consequently the Prophet put a ban
on killing the mundfigin, On a similar note, the Prophet suspended
enforcement of the hadd penalty for theft during battles so as to avoid
defection to enemy forces. It was for this reason, namely to block the
means to an evil, that the army commanders were ordered not to
enforce the prescribed penalties during military engagements.*

The leading Companions are also known to have entitled to inher-
itance the divorced woman whom her husband had irrevocably
divorced during his death-illness (marad al-mawt) in order to exclude
her from inheritance, This was forbidden by the Companions so that
a divorce of this kind would not become a means to abuse. It is also

Sadd al-Dhara’s* (Blocking the Means) 401

reported that during the time of the Caliph ‘Umar ibn al-Khattab,
‘onc of his officials, Hudhayta, married @ Jewish woman in al-Mada'in.
The Caliph wrote to him saying that he should divorce her. Hudhayfa
then asked the Caliph if the marriage was unlawful, To this the Caliph
replied that it was not, but that his example might be followed
by others who would be lured by the beauty of the women of ahi
al-dhimmah, The Caliph thus forbade something that the Qur'an had
declared lawful so as to block the means to an evil as he perceived it
at the time. It might be interesting to add here that Ibn Qayyim
al-Jawziyya records at least seventy-seven instances and rulings of the
Jeamed Companions and the subsequent generations of ‘wlama’ in
which they resorted to sadd al-dhani'y’ so as to block the means that
led to evil.?

The ‘ulama* are, however, in disagreement over the validity of
sadd al-dhara’i’. The Hanafi and Shafi'l jurists do not recognise it as a
principle of jurisprudence in its own night, on the grounds that the
necessary ruling regarding the means can be denved by recourse to
other principles such as qiyils, and the Hanafi doctrines of istibsin and
‘wef. But the Maliki and Hanbalt jurists have validated sadd al-dhara’é
a5. proof of Shar ah in its own right. Despite the different approaches
thae the ‘ulama’ have taken to this doctrine, the Maliki jurist al-Shitibl
has reached the conclusion that the ‘ulamd' of various schools are
essentially in agreement about the conceptual validity of sadd al-dhara’i
but have differed in its detailed application, Their differences relate
muinly to the grounds that may be held to constitute the means to
something else, and also to the extent to which the concept of sadd
al-dhari’i’ can be validly applied." Ab Zahrah has reached essentially
the same conclusion by observing that the Shafi'l and Hanafi jurists
are for the most part in agreement with their Maliki and Hanbalt
counterparts, and that they differ only in regard to some issues.’ The
following classification of sadd al-dhari'i' may cast light on the consen-
sus, as well as some of the areas in which the ‘ulamd’ are in disagree
ment, regarding the application of this doctrine. It is perhaps well to
remember at this point that notwithstanding the application of sadd
al-dhara’" in respect of opening the means to beneficence {masliahah),
it is usually the prevention of evil (mafsadah) that acquires greater
prominence in the discussion of this principle.

From the viewpoint of the degree of probability or otherwise that
a means is expected to lead to an evil end, the ‘wlama’ of usil have
divided the dhara’i' into four types.

(3) Means that definitely lead to evil, such as digging a deep pit

402 PRINCIPLES OF ISLAMIC JURISPRUDENCE

next to the entrance to a public place that is not lit at night, so that
anyone who enters the door is very likely to fall into it. Based on the
near-certainty of the expected result of injuring others, the means that
lead to that result are equally forbidden. The ‘wlama” of all schools
are, in principle, unanimous on the prohibition of this type of dharfah
and a consensus (jjmd) is said to have been reached on this point."

Having said this, however, it should be added that the jurists have
envisaged two posible eventualitics. Firstly, the dhart'ah may consist
of an unlawful act of transgression in the first place, as was the case
in the foregoing example, in which case the perpetrator is held to be
responsible for any loss or damage that might be caused, as by digging
2 pit in a place where he has no right or authority to do so, Secondly,

the dharf‘ah may consist of an act that is basically lawful, inv which
case the ‘wlama’ have disagreed about the question of responsibility

If, for example, someone digs a water well in his own house but so
close to the wall of his neighbour that the wall collapses as 2 result,
the act here is held to be basically lawful as it consists of the exercise
of the right of ownership, which is said to be irreconcilable with the
idea of liability for damages. According to a variant view, however

the perpetrator is liable for damages. This ruling draws support from
the principle, already referred to, that preventing an evil takes priority
cover securing a benefit."

(2) The second type of means is that which is most likely (i.e. on
the basis of al-zann al-ghalib) to lead to evil and is rarely, if ever,
expected to lead to a benefit. An example of this would be selling
weapons during warfare or selling grapes to a wine maker. Although
al-Shatibt has noted that these transactions are invalid according to
the consensus (jjmi') of the ‘ulama’, both AbO Zahrah and Badrin
have noted that it is only the Maliki and Hanball ‘ulamd’ who have
considered these transactions to be forbidden (hardim), as they are most
likely to lead to evil notwithstanding the absence of certain knowl-
edge that this will always be the case. In their opinion, a dominant
probability or zann is generally accepted as a valid basis for the ahem
of Sharf‘ah, Consequently when there is a strong likelihood that
certain means will lead to an evil, the means may be declared forbid~
den on the basis of this probability alone."*

(3) The third of the four types of means under discussion is that
which frequently leads to evil, but in which there is no certainty, o
even a dominant probability, that this will always be the case. An
example of this would be a sale that is used as a means to procuring
usury (riba’), These types of sales, generally known as buyii* al-ajal

Sadd al-Dhara'i* (Blocking the Means) 403

(deferred sales), in which cither the delivery of the object of sale, or
the payment of its price, is deferred to a later date, would all tend to
fall into this category of means. If, for example, A sells a garment for
ten rials to B with the price being payable in six months’ time, and
A then buys the same garment from B for eight nuls with the price
being payable immediately, this transaction in effect amounts to a
Joan of eight rials to B on which he pays an interest of two rials after
six months. ‘There is a dominant probability that this sale will lead to
riba’ although there is an element of uncertainty in that it might not,
which is why the “ulama’ have disagreed on the validity or otherwise
of this type of transaction. Imam Malik and Abmad ibn Hanbal have
held that the means which are likely to lead to usury are unlawful
(hardm) and must be obstructed. They have acknowledged the possi-
bility that a deferred sale may not actually lead to riba; they also take
cognizance of the basic norm in regard to sale, which is legality, and
yet they have ruled, on grounds of caution (iftiya/), that sales that are
likely to lead to sibd are unlawful. The mere possibility that ribd may
not actually materialise is of no account and, although sale is gener-
ally lawful, this basic legality is of no consequence if it is expected to
procure an evil. Furthermore, preventing the latter must be given
priority over any pouible bencfit that the sale in question might entail

The Imams Ab0 Hanifah and al-Shifi'l have, on the other hand,
ruled that unless it definitely leads to evil, the basic legality of sale
must be held to prevail, Sale is basically lawful in all its varieties,
deferred or otherwise, and in the absence of either positive know!-
edge (‘ilm) or of 3 dominant zann that a sale will lead to riba’, a mere
frequency of occurrence should not be allowed to override the
original legality of sale, The preferred view, however, is that of the
Maliki and Hanball schools, for there is evidence in the Sunnah to
the effect that original permissibility may be overruled in the face of
2 likelihood (or customary practice), even without definite evidence
that it might open the way to evil."

The ‘wlama’ have similarly differed over the validity or otherwise
of a marriage that is concluded with the intention of merely satisty-
ing one’s sexual desire without a life-long commitment. Imam Malik
considers this to be invalid (baril), as aets, according to this view, are
to be judged by the intention behind them, and since the norm in
marriage is permanence, the absence of an intention to that effect
vitiates the nileth. The main thrust of this view is to prevent the likely
abuse that the marriage in question is likely to lead to, Imam al-Shafi'l
has on the other hand held that the nikih is valid so long as there is

404 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Sadd al-Dhara'l' (Blocking the Means) 405

nothing in the contract to vitiate it. The Shari'ah, according to this
view, cannot operate on the hidden intentions of people but only on
tangible facts that are susceptible to proof. Whether the mils in this case
is a means to abuse is a matter for the conscience of the individual,
and not the positive application of the law.'* The difference here is
one of perspective. Whereas the Shifi'l and Hanafi view is based on
the apparent validity of a contract, the Maliki and Hanbali view takes
into consideration the objective of a contract and the necessary caution
that must be taken in order to prevent an evil.'* The ‘ulama’ are, on
the other hand, all in. agreement on the prohibition of illicit privacy
(khalwah) which is founded in the likelihood, though not amounting
to positive proof, that it might lead to adultery."

Another, similar instance in which the jurists have invoked the

principle of sadd al-dhara’¢ is the ruling, disputed by some, that close
relatives may neither act as witnesses nor as judges in each others’
disputes. Likewise, a judge may not adjudicate a dispute on the basis
of his personal knowledge of facts without the formal presentation of
evidence, lest it lead to prejudice in favour or against one of the parties.
The principle involved here is that such activites might constitute the
means to an evil end, namely a miscarriage of justice, and are there~
fore to be avoided. The Hanatls on the other hand maintain, particu~
larly in reference to adjudication on the basis of personal knowledge,
that it is lawful. Some ‘wlama’ have also held the view that testimony
by a relative may in fact facilitate justice and may not lead to evil,
especially if relations testify against each other, which is why the
‘ulama’ of various schools have allowed the testimony of father or
son, oF of spouses, against one another, but not in favour.'? The
jurists have thus disagreed about the application of sadd al-dhara't' to
particular issues and the extent to which it may be validly applied
to different situations.

(4) The last of the four varieties of means are those that are rarely
expected to lead to evil and are most likely to lead to a benefit. An
example of this would be to dig a water well in a place where it is
not likely to cause injury of harm to anyone, or speaking a word of
truth to a tyrannical ruler, or growing certain varieties of fruits, such
as grapes, on one’s own property. In all of these, as in many other
matters, there is a possibility that a mafiadah might be caused as a
result, In the case of growing grapes, for example, it is possible that
the fruit may be fermented into wine, but a mere possibility of this
kind is overlooked in view of the stronger likelihood of the benefit
that it would otherwise achieve. The ‘ulama’ are generally in agree-

ment on the permissibility of this type of means. The basic norm in
regard to acts and transactions that would fall into this category of
means is permissibility, and no-one may be prevented from attempt-
ng them on account of the mere possibility that they may lead to a
mafiadah. On a similar note, no-one may be prevented from giving
testimony in judicial disputes, nor may anyone be obstructed from
telling the truth to a tyrannical ruler because of a mere possibility that
this might give rise to a mafsadah."*

The foregoing discussion of sadd al-dhara’i* has primarily been con-
cerned with means that led to an unlawful end. There was, in other
words, no attempt to change the hardm into halal: whenever there
was a likelihood that a lawfal means led to an unlawful end, the means
itself became unlawful. But the application of sadd al-dhara’i' also
covers the eventuality where a harm may be turned into halal or mubah
if this is likely to prevent a greater evil. A lesser evil is, in other words,
tolerated in order to prevent a greater one. To give an example: it is
permissible to seek the release of Muslim prisoners of war in exchange
for the payment of a monetary ransom. To give money to the warring
enemy is basically unlawful as it adds strength to the enemy, which
is generally harmful. Buc it is permitted here as it achieves the freedom
of Muslim prisoners, which would in turn add to the strength of the
Muslim forces. This ruling is based in the principle of sadd al-dhart'’,
and consists of opening, rather than blocking, the means to the
desired benefit. On a similar note, it ts permissible for the Muslim
community to pay the enemy so as to prevent the latter from inflict
ing harm on the Muslims, but only when the Muslim community is
otherwise powerless to defend itself. Furthermore, the ‘wlama’ have
generally held that giving bribes is permissible if this is the only way
to prevent oppression, and the victim is otherwise unable to defend
himself. To this the Hanball and Maliki jurists have added the proviso
that giving bribes is only permissible as a means of defending one’s
proven nights but not if the right in question is disputed.

Notwithstanding the essential validity of sadd al-dhard’i* as a prin-
ciple of Sharf‘ah, over-reliance on it is not recommended. The ‘ulama”
have cautioned that an excessive use of this principle may render the
lawful (mubah) or even the praiseworthy (manda) and the obligatory
(wajid) unlawful, which should not be encouraged, An example of
this would be when an upright person refiuses to take custody of the
property of the orphan, or of wagf property, for the pious motive of
avoiding the possibility of incurring a sin. A refusal of this nature
would seem to over-emphasise the significance of the means that

406 PRINCIPLES OF ISLAMIC JURISPRUDENCE

might lead to evil. With regard to the guardianship of the property
of orphans, the Qur’in offers some guidance in that it permits mixing
their property with that of the guardian as a matter of trust, a conclu»
sion that is drawn from the text where we read in a reference to the
orphans: ‘If you mix their affairs with yours, they are your brethren,
but God knows the wrong-doer from the upright’ (al-Baqarah, 2:220)

pt cant play dily @ Sil f pa ghll= oly
ghallig

While discussing the caution of the ‘wlama” against over-reliance
on sadd al-dhara'i’, AbO Zahrah quotes the renowned Maliki jurist Ibn
al-‘Arabt to the effect that the application of this principle should be
regulated so as to ensure propriety and moderation in its use. Ab
Zahrah then concurs with Ibn al-'Arabi to the effect that if an evil is
to be prevented by blocking the means towards it, ane must ascer=
tain thar the evil in question is mansils “alayh, that is, one that has been
ruled upon as such in the Qur'in or the Sunnah. Similarly, when a
benefit is to be facilitated by opening the means to it, the propriety of
the benefit must be sustainable by analogy with a halal mangily (that
which has been declared lawful in the mags). But AbO Zahrah is careful
to add that these conditions remain in the nature of an opinion and
are not required in the accepted Maliki exposition of this doctrine.

And finally, with regard to the guardianship of property and trust
in the foregoing example, it is suggested that the harm that is likely to
arise from the refusal of an upright pervon to undertake it is likely to
be greater than that which might arise from undertaking it. If the
orphans were to be neglected for fear of opening the means to misuse
of trust, of if no-one gave testimony for fear of indulging in lying,
then surely this would itself become a means to greater evil and
should therefore be avoided.

We might end our discussion of sadd al-dhara'' by distinguishing
the means from the preliminary (mugaddimah), although the two can
at times coincide and overlap. Briefly, a ‘preliminary’ consists of some-
thing that is necessary for obtaining the result that it aims for, in the
sense that the latter cannot materialise without the former. For instance,
ablution (wuda’) is a preliminary to salah and the later cannot be
performed without the former. But a means to something does not
stand in the same relationship to its end. Although the means is normally
expected to lead to the end it contemplates, the latter may also be
obtained through some other means. The end, in other words, is not
exclusively dependent on the means, To give an example: travelling

Sadd al-Dhara’i* (Blocking the Means) 407

in order to commit theft is a preliminary to the theft that is aimed for
but not a means to it. Travelling, which might consist of riding a train
in a certain direction, is basically neutral and cannot, on an objective
basis, be said to constitute a means to theft. But tahlil, that is an inter-
vening marriage concluded in order to legalise remarriage between a
divorced couple, is a means to the proposed marriage but not a
preliminary to it, as the latter is not exclusively dependent on fallil
and can, for example, follow a normal intervening marriage. Similarly,
seductive overtures between members of the opposite sexes are a
means, but not a preliminary, to adultery, as the latter can materialise
even without such overtures, Sexual overtures can only constitute a
preliminary to zind when they actually lead to it

The other difference to note between the means and the preliminary
for our purposes, is, as already indicated, that the former is usually
evaluated and declared unlawful on an objective basis even without
the realisation of its expected end. The preliminary to an act, on the
other hand, is of little value without the actual occurrence of the act
of which it becomes a part. The relationship between preliminary and
its result is subjective in the sense that it can only be evaluated in the
light of the completed or the intended result, Walking in the direc
tion of a mosque to perform the Friday prayers, for example, can only
acquire the value of the wijib if it actually leads to the performance
of the prayers, not otherwise."'

It thus appears that sadd al-dhara’i* not only aims to block the means
to evil but, in an affirmative sense, it is predicated on upholding the
basic objectives (magayid) of Shari'ah, especially the maslahah. It is
founded on the rationale that the laws of Sharl'ah aim to realise certain
objectives just as they also seck to prevent corruption and evil. These
are the basic goals of Shari'ah, which must not be frustrated or over-
ruled through a mere change of tactics or the adoption of plausible
stratagems. When there is such a threat, sadd al-dhard’i' in one way by
which the ii al-amr and the myjtahid may vindicate the basic objectives
of the law by closing the door to manipulation and abuse. The fact that
the Maliki school became the chief exponent of this doctrine is due,
toa large extent, to the parellel recognition by this school of majlafah
as an independent source. The Maliki doctrine of sadd al-dhard'l', in
other words, derived much of its rigour from the parallel emphasis that
this madhhab has placed on maslabah. Since sadd al-dhard'’ is rooted
in the realisation of genuine maslahah, the Maliki school was able to
give this doctrine a degree of prominence that the other schools were
not in a position to give.

eo aM RISPRUDENCE Sadd al-Dhara'' (Blocking the Means) 409

ing i as warmed over: AbG Zahrah, Upil, p, 219: Shalabi 7; lard, Adilla, p
Dertic r “ ples
(mubah), 7 ded (man r . fea oh chpbiope
Abo Zahrsh, Uinil,p. 230; Badri, Uiyll p. 24
of F : 2. Abo 2 al, p. 231; Badin, Usa, p. 244
A brief not dist - sibt, Muar i al, p. 24a; ADO Zab pay
a h fer ‘ f
these tv : specif 4 4 :
meth: 1 Doi 7. Shalabl, Figh, p. 16: Badri, Uy
circumvent the |: . has a =
ing th t of zak king a gitt of c h 0
time the t ¢ i fi but here it Tadin, Lidl, pp. 245-0 Homa, Adilah
is used asa dodg r tere ween Abo Zahra, {
add al-dhara't’ and h ke th J. Shiyibl, Miandfagit, IV, 201; Miga, al-Ra'y. p. 4
Methods tha e a
clud hilak but may well fa 2 The re
of the intention of the ator fi htlah. The questic
f-dhard'®, (3 h a wid th ah, a
is a cert r fot nd ness in the former tha
lacking in thi Hila and deter fer
to the intention r 2 i

r nds t ke
ituations may not be clear and hilah and dhari“ah
NoTE
Ch AbOZ
2, Shagibt, Munahapit (ed. Diraz), IV. 196
3. Ibid, 1V, 195; Bade Pr

CHAPTER SEVENTEEN

Hukm Shari (Law or Value of
Shariah)

Literally, hukm means ‘to prove’ or ‘to eliminate something in respect
of another
A, it means that A's ownership is prover
also means that ownership of that house by another person is nullified
A hukm can be rational (agit), such as 1+1=2, of perceptible to the

For exan when it is said that this house belo

respect of that ho

senses (hissi), or it can be shar'i, such as the obligation to perform the
five daily prayers, The ‘ulama’ of usil define hukm shar'f as a locution
or communication from the Lawgzver concerning the conduct of the
mukallaf (person in full possession of his faculties) which consists of a
demand, an option or an enactment. A demand (falab or igtida’) is
usually communicated in the form of either a command of a prohi~
bition, The former demands that the mukellaf do something, whereas
the latter requires him to avoid doing something. A demand may either
be binding, which leaves the mukallaf with no choice but to conform,
‘or may not be binding. When a demand to do or not to do something
is established by definitive proof (dali! af), it is referred to as wijib
or harim respectively. Such is the majority view, but according to the
Hanafi jurists, if the text that conveys such a demand is not defini-
tive in its meaning (dalilah) or authenticity (chub), it is wajiby if it is
definitive in both respects, itis fard, As for the demand to avoid doing
something, the Hanafls maintain that if it is based on definitive proof
in terms of both meaning and authenticity, it is hardm, otherwise it is
maketh tahrimt. When a demand is not utterly emphatic and leaves
the individual with an element of choice it is known as mandib

Hukm Shar't (Law or Value of Shariah)

(recommended). The option (takhyir), on the other hand, is a variety
of huiem shar that leaves the individual at liberty either to do or avoid
doing something. A hukm of this kind is commonly known as mubah
(permissible). An enactment, or wag’, is neither a demand nor an
option, but an objective exposition of the law which enacts some-
thing as a cause (taba) or a condition (shart) of obtaining something
else; or it may be conveyed in the form of a hindrance (mani’) that
might operate as an obstacle against obtaining it.

To give some examples, the Qur’inie command that exhorts the
believers to “fulfil your contracts’ (al-Ma'idah, 5:1)

dgidle Ud sh Leet oil Unt &

is a speech of the Lawgiver addressed to the mukallaf that consists of
a particular demand. A demand addressed to the muballaf conveying
a prohibition may be illustrated by reference to the Qur'snic text
which provides: 'O you believers, let not some people ridicule others,
for it is possible that the latter are better than the former’ (al-Hujurit,
4911)

eh he call ll
ele LS ol

To illustrate + hukm that conveys an option, we refer to the Qur’inic
text that permits the believers to ‘hunt when you have come out of
the state of ibriim’ (the sacred state entered into for the purpose of
performing the aij pilgrimage) (al-Ma'idah, 5:2)

A yaUaotd ple lily

Another Qurinic text that consists of an option occurs in stra
al-Bagarah (2:29) which provides: “If you fear that they [ic. the
spouses] would be unable to observe the limits set by God, then there
would be no sin for either of them if she gives a consideration for
her freedom.”

4 AT LD gle Clee 0 il a ptm Lasts VT pe Of

‘The married couple are thus given the choice to incur a divorce by
mutual consent, known as kiul’, if they so wish, but they are under

412 PRINCIPLES OF ISLAMIC JURISPRUDENCE

no obligation if they do not. Another form of opti
the Qur'in may be illustrated with reference to th
of erroncous killing. The perpetrator has here been given the choice
to either seta slave free, or feed sixty destitutes, or fast for two consec~
utive months (al-Nisi’, 4:92). The following hadith also conveys a
hukm in which the individual is given a choice, The hadith reads: ‘If
any of you sees something evil, he should set it right by his hand; if
he is unable to do so, then by his tongue; and if he is unable to do
even that, then within his heart ~ but this is the weakest form of
faith

Aid alacany A OY 6 ecko pteld | See See esl) oy

OLY! aol Udy aid alas J ols

Here the choice is given according to the ability of the mukallaf
and the circumstances that might influence his decision. Lastly, to
illustrate a bukm that consists of an enactment (wad) we may refer to
the hadith which provides that ‘the killer does not inherit’!

«filo Y

This is a speech of the Lawgiver conceming the conduct of the
mukallaf which is neither a demand nor an option but an objective
ruling of the law that envisages a certain eventuality.

The ‘wlama’ of usil have differed with the figaha’ in regard to the
identification of hukm shar'f. To refer back to the first example where
we quoted the Qur'an concerning the fulfilment of contracts, accord
ing to the ‘wlama’ of usil, the cext itself, that is, the demand that is
conveyed in the text, represents the hulam shar. However, according
to the fugaha’, it is the effect of that demand, namely the obligation
(wwjib) that it conveys, which embodies the hulm shar. To give
another example, the Qur'inic prohibition that provides in an address
to the believers: ‘Do not commit adultery’ (al-Ise3', 17:32)

Up yw Vy

is itself the embodiment of the huky shar'f, according to the ‘wlama’
of usail, But according to the fugaha’, it is the effect of the demand in
this dyah, namely the prohibition (tahrim) which represents the husdem
shar‘. Similarly, the Que’anic text in respect of the permissibility of

Hukm S

ar'i (Law or Value of Shari'ah) 413

hunting which we earlier quoted is itself the embodiment of the hukm
shar f according to the ‘ulama’ of usil, but it is the effect of that text,
namely the permissibility (ihthah) that is the hukm according to the
fugaha’. Having explained this difference of perspective between the
ulas of usiil and the fugaha’, it will be noted, however, that it is of
no practical consequence concerning the rulings of the Shari'ah, in
that the two aspects of hudem that they highlight are to all intents and
purposes concurrent.‘

Hukm shari ws divided into the two main varicties of al-hukm
al-takelift (defining law) and al-hukm al-wad'l (declaratory law). The
former consists of a demand or an option, whereas the latter consists
‘of an enactment only, ‘Defining law’ is fitting description of al-hukm
al-taklift, as it mainly defines the extent of man's liberty of action.
Al-hukm al-wad Tis rendered “declaratory law’, as this type of hukm
mainly declares the legal relationship between the cause (sabab) and
its effect (musabbab), or between the condition (shart) and its object
(mashni)’, Defining law may thus be described as a locution or com-
munication from the Lawgiver which demands the mukallaf to do
something or forbids him from doing something, or gives him an option
between the two. This type of hukm occurs in the well-known five
categories of wijib (obligatory), mandi (recommended), hand (forbid
den), makrah (abominable) and mubah (permissible). Declaratory law
is also subdivided into the five categories of sabab (cause), shart (condi
tion), mini’ (hindrance), al-"azimah (strict law) as opposed to al-rukhsah
(concessionary law), and salith (valid) as opposed to hail (null and
void)." We shall presently discuss the various sub-divisions of /uskem.

I. Defining Law (al-Hukm al-Taklift)

‘As stated above, ‘defining law’ is a locution or communication from
the Lawgiver addressed to the mukallaf which consists of a demand
or of an option; it occurs in the five varieties of wijib, mandib, hartm,
makriih and mubah. We shall discuss cach of these separately, as
follows.

1.1 The Obligatory (Wajib, Fard)

For the majority of ‘ulama’, wijib and fard are synonymous, and both
convey an imperative and binding demand of the Lawgiver addressed
to the mukallaf in respect of doing something. Acting upon some-
thing wijib leads to reward, while omitting it leads to punishment in

414 PRINCIPLES OF ISLAMIC JURISPRUDENCE

this world or in the hereafter. The Hanafis have, however, drawn a
distinction between wijib and fard, An act is thus obligatory in the
first degree, that is, fard, when the command to do it is conveyed in a
clear and definitive text of the Qur'an or Sunnah. But if the command
to do something is established in a speculative (zannf) authority, such
as an dhad hadith, the act will be obligatory in the second degree
(wijib), The obligatory commands to perform the salah and the bajj,
and to obey one’s parents are thus clasified under fard, as they are
each established in a definitive text of the Qur’3n. But the obligation
to recite sira al-Pitibah in salah, or to perform salat al-witr, that is,
the three units of prayers which conclude the late evening prayers
(salit al-‘isha’), are on the other hand classified as wajib, as they are
both established in the authority of hadith whose authenticity is not
completely free of doubt. A Muslim is bound to do acts which are
obligatory either in the first or in the second degree; if he docs them,
he secures reward and spiritual ment, but if he wilfully neglects them,
he makes himself liable to punishment. The difference between the
two classes of obligations, according to the vast majority of the jurists,
including the Hanafls, is that the person who refuses to believe in the
binding nature of a command established by definitive proof becomes
an unbeliever, but not if he disputes the authority of an obligatory
command of the second degree, although he becomes a transgressor.
Thus to neglect one's obligation to support one’s wife, children and
poor parents amounts to a sin but not to infidelity.”

Another consequence of the distinction between fard and wijib is
that when the former is neglected in an act required by the Shari'ah,
the act as a whole becomes null and void (bail), If, for example, a
persion leaves out the bowing (nlf) or prostration (sajdah) in oblig-
atory prayers, the whole of the prayer becomes null and void. But
if he leaves out the recitation of al-Fitihah, the salah is basically
valid, albeit deficient. This is the Hanafi view, but according to the
majority the salah is null and void in both cases. However, the differ=
ence between the Hanafls and the majority in this respect is regarded
as one of form rather than substance, in that the consequences of their
disagreement are negligible on the whole. Al-Ghazill is representa-
tive of the majority opinion, including that of the Shifi'ls, when he
writes: “As far as we are corcemed, there is no difference between
fard and wajib; the two terms are synonymous. According to the
Hanafls, fard is based on definitive authority but wijib is founded in
speculative proof. Once again, we do not deny the division of wajib
into definitive and speculative (magti’ wa-mazniin), and there is no

Hulem Shari (Law or Value of Shariah) 415

objection to the use of different expressions once their meaning is
dear.”

Wajib is sub-divided into at least three varieties, the first of which
is its division into personal (‘ayni) and collective (kafa’i). Wajib ‘aynt
is addressed to every individual sui juris and cannot, in principle, be
performed for or on behalf of another person. Examples of jib (or
fard) ‘ayni are salah, hajj, zakah, fulfilment of contracts and obedience
to one’s parents. Wajib kaf'T consists of obligations that are addressed
to the community as a whole. If only some members of the commu-
nity perform them, the law is satisfied and the rest of the community
is absolved of it. For example, the duty to participate in jihad (holy
struggle), funeral prayers, the hishah, (promotion of good and preven-
tion of evil), building hospitals, extinguishing fires, giving testimony
and serving as a judge, etc., are all collective obligations on the com-
munity, and are thus wajib (or fard) kaff't. Thus when a person dies
Jeaving no property to meet the cost of his burial, it is the wiljib kaf’'T
of the community to provide it and to give him a decent burial. Only
some member of the community may actually contribute toward the
cost, but the duty is nevertheless discharged from the whole of the
community. The merit (thawilb), however, only attaches to those who
have actually taken part in discharging the wajib kafa’r

There is some disagreement on whether the duty in a wijib kaft’t
is individually directed to all members of the Muslim community or
toa group of them only. The jumhdr position on this is that the orig~
inal address (khifab) is to all individuals without any reference to such
things as the ability and qualifications of the prospective participants,

The collective obligation sometimes changes into a personal oblig-
ation. This is, for example, the case with regard to ijuhad, which is a
wajib kafa't, although when the enemy attacks and besieges a locality,
ie becomes the personal duty of every resident to defend it. Similarly,
when there is only one mujtahid in a city, it becomes his personal duty
to-carry out ijtihad."

From the viewpoint of the time of its performance, wiljib is also
divided into wajib muwaggat (or mugayyad), that is, wijib which is
contingent on a time-limit, and wijib mutlag, that is, ‘absolute wiyib',
which is free of such a limitation. Fasting and the obligatory salah are
examples of contingent wajib, as they must each be observed within
specified time limits. But performing the hajj or the payment of an
expiation (kafféreh) are not subject to such restrictions and are there
fore absolute wijib. Provided that one performs the hajj once during
‘one’s lifetime and pays the kaffirah at any time before one dics, the

416 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Hulem Shari (Law ot Value of Sharfah) 417

duty is discharged.’' Furthermore, the absolute wijib is called absolute
because there is no time-limit on its performance and it may be fulfilled
every time whenever the occasion arises. This is, for example, the
case regarding one's duty to obey one’s parents, or the obligation to
carry out hisbah, namely, to promote good and to prevent of evil as
and when the occasion arises,

Wajib muwaggat is sub-divided into flexible (muuussa’), inflexible
(mudayyag) and twin-faceted (dha shabhayn). There are time limits in
all of these but there is some flexibility, in the case of muussa’, where
a duty is performed within a time-frame. The midday prayer (saat
al-zwhr), for example, may be performed any time from the begin-
ning to the end of its time segment. This flexibility is not available,
however, in the wijib mudayyag, such as the fasting of Ramadin,
which is inflexible not only in terms of the beginning and the end of
fasting, but also in that no other variety of fasting may be observed
in the month of Ramadin. In the case of wijib muwassa', and the
example we gave of saldt alazuhr, the position is once again flexible
in that other forms of sali may be performed within the time period
of zuhr. The twin-faceted wijib, or divi shabhayn, is so-called because
it has an aspect in common with the sa’ in that it can be
performed any time during the months of hajj, that is, Shawwal and
Dhu'l-Hijah. But it is mudayyag in that only one hajj can be performed
on specific days, such as the wugif which is on the ninth day of Dhu’'l-
Hijab. Another aspect in common with muustesa’ in this case is that
one performs either the obligatory hajj, or a superegatory hajj, during
particular months.

‘A consequence of this division is that wijib muwaggat materialises
only when the time is due for it; it may neither be hastened nor
delayed, but within the given time limits the mulallaf has a measure
of flexibility. Furthermore, to fulfil a contingent wiljib, it is necessary
that the mukallaf have the specific intention (niyyah) to discharge it,'*

Lastly, the wajib is divided into quantified wajib (wijib mubaddad)
and unquantified wajib (wijib ghayr mubaddad). An example of the
former is salah, zakdh, payment of the price (thaman) by the purchaser
in a sale transaction, and payment of rent in accordance with the
terms of a tenancy agreement, all of which are quantified. Similarly,
enforcement of the prescribed penalties (hudid) falls under the rubric
of wijib mubaddad in the sense that the hadd penalties are all specified
in terms of quantity. The unquantified wijib may be illustrated by
reference to one’s duty to support one’s close relatives, charity to the
poor, feeding the hungry, paying a dower (mahr) to one’s wife, the

length of standing (giyam), bowing and prostration in salah, wiping
the head in ablution (wad@’) and quantifying the ta'zir penalties for
offences that are punishable but in regard to which the Lawgiver has
not quantified the punishment. (It is for the judge to quantify the
Punishment in the light of the individual circumstances of the offender
and the offence.) Consequently, the mukallaf, whether the individual
believer, the qidf or the imam, enjoys the flexibility to determine the
quantitative aspect of the unquantified wijib himself?

‘A consequence of this division is that if the quantified wajib is not
discharged within the given time-limit, it constitutes a liability on the
person (dhimmah) of the individual, as in the case of unpaid zakih or
an unpaid debt. Failure to discharge a wijib ghayr mubaddad, on the
other hand, does not result in personal liability.

‘A question arises with regard to the value of the excessive portion
in the supererogation of quantified wijib. The question is whether an
over-fulfilment of this type becomes a part of the wijib itself, There
are two main views on this, one of which maintains that excessive
performance in quantified uijib also becomes 3 part of the usjib, But
the preferred view is that any addition to the minimal requirement
becomes mandiib only, for no punishment can be imposed for a failure
to perform anything in addition to the minimum required."

And lastly, from the viewpoint of its fulfilment, the wijib is divided
into mu‘ayyan (specified) and mukhayyar (optional). The demand to
perform the former is concemed with a specific act, such as prayer and
zakih, which leaves the mukallaf with no option to perform another
act instead. All the five obligatory duties, known as the five pillars,
consist of specified wiljib. Another example would be to return a
borrowed or usurped item to its owner. The optional wijib is one in
which the demand is concerned with the performance of an unspeci~
fied act out of a limited number of alternatives, such as the obligation
to expiate the breaking of an oath, The mukallaf is given the choice
to do one of four things, namely, feed ten indigent persons, cloth
them, free a slave or fast three days (cf. al-Mi’idah, 5:89). Sometimes
the option is between unequal things, such as between a wijib and a
‘mandib, in, whieh case the latter course is preferred. According to a
Qurinic injunction (al-Baqarah, 2:280), if the debtor is in dire straits,
he must be granted a respite (wijid), but it is recommended (mandab)
that the debt is waived as charity."

Te would be inaccurate to say that a means (0 a wij is also a wajib,
‘orthat a necesary ingredient of wajib is also wajib in every case. For
such a view would tend to ignore the personal capacity of the mukallaf,

418 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Hukm Shari (Law or Value of Shariah) 419

especially if the latter is unable to do what is required of him, in the
event, for example, when the Friday congregational prayer cannot be
held for lack of a large number of people in a locality. It would be
more accurate to say that when the means to usijib consist of an act
that is within the capacity of the mukallaf then that act is also wiljib
upon him."*

The distinction between wijib and mandib is, broadly speaking,
based on the idea that ignoring the wajib entails punishment (‘igab)
while ignoring the mandiib does not. The distinction between harim
and mala is based on a similar criterion: if doing something is punish
able, it is harim, otherwise it is maknih, This is generally correct, but
one must add the proviso that punishment is not a necessary require
ment of a binding obligation, or wwjdb. In addition, as Imam Ghazal
points out, the element of punishment, whether in this world or in
the Hereafter, is not a certainty, Whereas in its positive sense the wijib
is normally enforceable in this world, and might also lead to a tangible
advantage or reward, the spiritual punishment for its neglect is,
however, awaited and postponed to the hereafter. Hence the threat
of punishment is not a necessary requirement of wijib. When God
Almighty renders an act obligatory upon people without mentioning
a punishment for its omission, the act so demanded is still wafjib.!”

A wijib may be discharged within its prescribed time, that is, by way
of ada’, or by way of belated performance (qadd’), or even a repeated
but better performance, that is i‘ddah, Timely performance (add’) may
cither be perfect (add kdmil), which is the ideal performance of an act
in due regard of its essence and attributes, or it may be imperfect (ada
asi) which falls short of some attributes, An example of the former
is to perform an obligatory sald: in congregation, and of the latter is
to perform it individually. Ada’ kamil is a perfect performance whereas
ada’ gasir is defective and should, whenever possible, be compensated
for; however, the obligation is fulfilled and the person does not incur
a sin. Belated performance (gadd’) is also of two kinds, namely,
complete restitution (qada’ kiimif) and restitution that is incomplete.
The former occurs in respect of duties that can be measured and
quantified, and the latter when the original obligation is restituted in
substance but not in form. An example of the latter is when the
monetary value of a duty, instead of the original substance, is given
as a substitute. In the case of restoration or i‘ddal, the original duty
is fulfilled yet owing to some defect, or even in the absence of defect,
it is repeated for greater merit. A person may, for example, have
performed the saldh individually, but repeats the same by performing

it in, congregation, or he remembers that he had made an error in its
original performance.

1.2 Mandab (Recommended)

Mandib denotes a demand from the Lawgiver which asks the mukallaf
to do something that is, however, not binding on the latter, To
comply with the demand carns the mukallaf spiritual reward (thawib),
but no punishment is inflicted for failure to perform. Creating a
charitable endowment (wag/), for example, giving alms to the poor,
fasting on days outside Ramadan, attending the sick, etc., are duties
‘of this kind. Mandib is variously known as Sunnah, mustahabb and nafl,
which are all here synonymous and covered by the same definition."
If ic is an act which the Prophet performed on some occasions but
omitted on other, it is called Sunnah. There are two types of Sunnah,
namely Sunnah mu’akkadah (the emphatic Sunnah, also known as
Sunnab al-huda), and Sunnah ghayr mu'akkadah, or supererogatory
‘Sunnah. The call to congregational prayers (i.e. the adhdn), attending
congregational prayers and gargling as a part of the ablution (wudi’)
are examples of the former, whereas non-obligatory charity, and
supererogatory prayers preceding the obligatory salah in early and late
aftemoon (i.e. :uhr and ‘ajr) are examples of supererogatory Sunnah,
Performing the emphatic Sunnah leads to spiritual reward from
Almighty God while its neglect is merely blameworthy but not
punishable, However, if the entire population of a locality agree to
abandon the emphatic Sunnah, they are to be fought for contempt of
the Sunnah. To perform the supererogatory Sunmiah, on the other
hand, leads to spiritual reward while neglecting it is not blameworthy
There is a third variety of Sunnah known as Sunnah al-zaui'id, or
mandib al-zawa'id, which mainly refers to the acts and conduct
performed by the Prophet as a human being, such as his style of dress
and choice of food, etc., whose omission is neither abominable nor
blameworthy. This is basically a Hanafl classification. The other
madhahib have not classified the mandib which, to them, is variously
Known as Sunnah, nafilah, mustehabb, ihsin, fadilah and tapawwn',
According to the Shifi'ls, if the Prophet performed an act regularly,
it is called Sunnah, but if he performed it only once of twice, it is
called mustahabb. It is tajawww', on the other hand, if someone does
4 voluntary act of benefit without following a particular precedent.
These are acts of religious merit over and above the Sunnah and
mustahabb. The Maliki perception of Sunnah and mustababb (also

420 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Hulem Shari (Law or Value of Shariah) 421

slight difference
L, which is

known as ragha’ib) is similar to that of the Shafi'ts. A
may be noted, however, in the Maliki concept of naw
almost the same as tatawwu' but, to the Malikis, it means acts of
neral rules of Shariah on which

religious merit according to the g
the Prophet has given no specific instruction.
The Hanbalis have not differed significantly with the rest in the

designation of these concepts, except perhaps by using additional terms
such as dah, qurbak and ihsin, which they use almost synonymously
with mandib.

Al-Sh3tibi has observed that is
as an aid to the wijib, either in the
or as a reminiscent (tidhkiy) to wajid. It may belong to the genus of

a general sense the mandab serves
pacity of a prelude (mugaddimah)

the wijib, such as supererogatory prayer, fasting, alms-giving and haf,
or it may not belong to the genus of wijib, such as cleanliness of the
body and clothes, hastening in opening the fast and delaying the subiir
aining from idle alk while fasting

Mandiib often occurs in the Qur'an in the form of a command which
is then accompanied by indications to suggest that the command is
only intended to convey a recommendation. An example of this is
the Que'dnic command requiring that the giving and taking of period
Joans must be set down in writing (al-Baqarah, 2:283). But the subse
quent portion of the same passage provides that ‘if any of you deposits
something with another, then let the trustee {faithfully} discharge his
trust

meal, oF re

hop

acl gl) 2 4.lb Lanny Siam

This passage implies that if the creditor trusts the debtor, they may
for rement of documentation. Another example of a
command that only denotes a recommendation is the Qut’anic provi-
sion regarding slaves, where the text provides, ‘And if any of your
slaves seek their release from you in writing, set them free if you
know any good in them’ (al-Nar, 24:33)

(PSS SUT CSL Le ISI U gic epily
ae td paale of

go the requ

The last portion of this text indicates an element of choice which
renders the command therein mandab, But in the absence of such
accompanying evidence in the text itself, the Qur'inic command is

sometimes assessed as mandiih by reference to the general principles
of the Shariah,

Sometimes the mandb is conveyed in persuasive language rather
than as a command per se. An example of this is the hadith which
states: “Whoever makes an ablution for the Friday prayers, it is good,
but if he takes a bath, ir is better."*

any pb dahl py Leys
eeail faite factl oy

A question arises in this connection as to whether the mandab
remains a mandidb once it has been started, or becomes obligatory of
continuation until it is completed. The Hanafls have held that once
the mandab is commenced, it turns into an obligation and must be
completed. For example, when a person starts a supererogatory
fast, according to this view, it is obligatory that he complete it, and
failure to do so renders him liable to the duty of belated performance
(qada’). But according to the Shafi'ls, whose view here is generally
preferred, the mandab is never tumed into wijlb and always remains
a mandib, thereby leaving the person who has started it with the
choice of discontinuing it whenever he wishes, There is thus no duty
of belated performance (gadd’) on account of failure to complete a
mandab,”*

1.3 Haram (Forbidden)

According to the majority of ‘ulama’, hardm (also known as malrziir)
isa binding demand of the Lawgiver in respect of abandoning some-
thing, which may be founded in a definitive or a speculative proof
‘Committing the harm is punishable and omitting it is rewarded, But
according to the Hanafls, hardm is a binding demand to abandon
something that is established in definitive proof; if the demand is
founded in speculative evidence, it constitutes a maknth tabrimi, but
not harim, The former resembles the latter in that committing both
is punished and omitting them is rewarded, But the two differ from
one another insofar as the wilful denial of the hardm leads to infidelity,
which is not the case with regard to malenih salrimi.**

The textual evidence for hanim occurs in a variety of forms, which
may be summarised as follows. Fiestly, the text may clearly use the
word harim ot any of its derivatives. For example, the Qur'inic text

PRINCIPLES OF ISLAMIC JURISPRUDENCE

Hukm Shar't (Law or Value of Shariah) 4

. "Forbidden to you are the dead carcass, blood and pork:
»ther than God’ (al-~Ma’idah, $23)

which provid

dedicated t

and that which has been
By pig fal ey pp dt ety pally et pole o>

and ‘God has permitted sale and prohibited usury’ (al-Bagarah, 2-275).

Gal es cell ol bt

Similarly, the hadith that provides, "Everything belonging to a Muslim
w Muslims: his blood, his property and his

3 forbidden to his fe!
honour

whee wy alley arf pl > phen) le pLall js

Secondly, hanim may be conveyed in other prohibitory terms which
require the avoidance of a certain form of conduct. For example,
¢ Qur'inic text stating: ‘Slay not the life that God has made
al-An‘im, 6:11);

there is ¢
sacrosanct, save in the course of justice

HU YS p> gl ntl ke Vy

and ‘Devour not one another's property in defiance of the law’

al-Baqarah, 2:188)
Seid Kir Kyl 1b Vy

Thirdly, hanim may be communicated in the form of a command to
avoid a certain form of conduct. For example: there is the Qur'anic
text providing that wine-drinking and gambling are works of the
devil and then orders the believers to ‘avoid it’ (al-Mij‘idah, 5:90),
Fourthly, hardm may be communicated through expressions such
as “it is not permissible’ or ‘xt is unlawful’ in a context that is indica~
tive of total prohibition. For example, the Qur’Jnic text proclaiming
that ‘it is not permissible for you to inherit women against their will’

Nya oy dll gl &

WS cdl Ig 5 of SS Je

or the hadith which provides, ‘It is unlawful for a Muslim to take the
property of another Muslim without his consent’.**

ed oF alee VY ple ts pl JL Jey

Fifthly, hardmv is also identified by the enactment of a punishment
for a certain form of conduct. There are many instances of this in
the Qur'in and Sunnah. The hudid penalties are the most obvious
examples of this variety of harm. As is implied by its name, the hadd
penalty is specific in reference to both the quantity of punishment
and the type of conduct it penalises. Altematively, the text that
communicates tahrim may only consist of an emphatic condemnation
of a certain act without specifying the penalty for it as such, Thus the
Qur'in prohibits devouring the property of orphans by denouncing
it in the following terms: "Those who eat up the property of orphans
swallow fire into their own bodies' (al-Nisi’, 4:10).

UY Agley 9 OSE LY Lb ote Spf ols call oy

Harim is divided into ewo types: (1) hanim liedhatih or ‘that which
is forbidden for its own sake’, such as theft, murder, adultery, marry-
ing a close relative and performing salah without an abludion, all of
which are forbidden for their inherent enormity: and (a) karim
li-ghayrih, or ‘that which is forbidden because of something else’. An
act may have been originally lawful but made unlawful owing to the
presence of certain circumstances. For example: a marriage that is
contracted for the sole purpose of tabtlil, that is, in order 0 legalise
another intended marriage, performing salah in stolen clothes, and
making an offer of betrothal to a woman who is already betrothed to
another man. In each of these examples, the act involved is originally
lawful but has become hard owing to the attending circumstances
A consequence of this distinction between the two varieties of hardm
4s that hanim li-dhatih, such as marriage to one's sister or the sale of
dead carcasses, is ull and void ab initio (bari), whereas violating a
prohibition that is imposed owing to an extraneous factor is fisid
(irregular) but not bifil, and as such may fulfil its imtended legal
purpose. A marriage which is contracted for the purpose of rahi! is
clearly forbidden, but it validly takes place nevertheless. Similarly, a
contract of sale which is concluded at the time of the Friday prayer
is hardm li-ghayrih and is forbidden. But according to the majority of
‘ulamd’ the sale takes place nevertheless, with the exception of the
Hanbalis and Zihiris, who regard such a sale as bapil* Even the

424 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Hukm Shari (Law or Value of Shari'ah) 425

majority, however, have considered the ownership accruing upon
irable (al-milk al-khabithah) as it vio
nitory terms of the Qur'in

Another consequence of this distinction is that hardm li-dhdtih is not
permissible save in cases of dire necessity (danirah) of a kind which
threatens the safety of the ‘five principles’ of life, religion, intellect,
lineage and property. In this way, uttering a word of
drinking wine, is only permitted when it saves life. Haram li-ghayrih,
he other hand, is permissible not only in cases of absolute neces-
but also when it prevents hardship. Thus a physician is permitted
to look at the private parts of a patient even in the case of illn
that do not constitute an immediate threat to life

Another criterion for distinguishin
men

such a sale un

elity, or

jose

g the two varieties of harim

mh cor

ned by some ‘wlama’ is that handm li-g

ists of an act
that leads to harm li-dhatih, In this way, looking at the private parts
of another person is forbidden because it can lead to 2ind, which is
hardin itself. Similarly, marrying two sisters simultaneously is hanim
because it leads to the severance of ties of kinship (gaf’ al-arhdm)
which is hanim itself.

And lastly, in response to the question of whether ar
hardm can be combined with one that is intended to seek closeness

(qurbah) to God Most High, it is suggested that the harm overrides
the qurbah, Fasting on the day of ‘id, for example, is an act of qurbah,
but is hantm on that particular day, In this case the fast is vitiated and
the prohibitory clement in it overrides the element of qurbah

1.4 Maknih (Abominable)

Makrih is a demand of the Lawgiver that requires the mukallaf to
avoid something, but not in strictly prohibitory terms. Makrth is the
opposite of mandib, which means that neglecting the mandib amounts
to maknih, Since makeriht does not constitute a binding law, we merely
say that omitting something which is maknth is preferable to commit~
ting it. The perpetrator of something malenih is not liable to punish-
ment and, according to the majority of ‘lama’, he docs not incur moral
blame either. The Hanafis are in agreement with the majority view
in respect of only one of the two varieties of makrith, namely maknth
tanzihi, but not in regard to maknih tahrimi. The latter, according to
the Hanafls, entails moral blame but no punishment. The ‘wlama’ are
all in agreement that anyone who avoids the makrith merits praise and
gains closeness to God.

The textual authority for maknih may consist of a reference to
something that is specifically identified as maketh, or may be so identi-
fied by words that may convey an equivalent meaning. The word
makrih occurs in its literal sense in the following Qur'inic passage
“All of these are evil and abomination in the sight of your Lord’ (al-
Iara’, 17:38)

Lay So thy, te ate IS alld JS

The reference here is to a number of things, including walking on
the earth with insolence, aking a stand on a matter without adequate
knowledge, failure to give due measurement and weight and failure
to keep one’s promise. Another example of makrith in the Qur’in is
premature questioning, as indicated in the following dyah: “O you who
believe, ask not questions about things which, if made clear to you,
muy trouble you. But if you ask about them when the Qur'an is being
revealed, they will be explained to you.’ (al-Ma’idah, s:101)

pS Sead pS as Of ebetl ye NgLes YLT oe Ya!
pb a5 OT a ps oom Lee Ils Oly

The ruling ‘ask not questions’ is conveyed in the language of a prohi~
bition, but since the latter part of the dyah permits asking questions,
the prohibition is changed into a mere maknih. This is also confirmed
by another dyah which clearly permits asking questions; “Ask those
who know, if you know not yourselves’ (al-Nabl, 16:43)

Ops Y aS of SH Jl iu
We also read in another Qur’Snic dyah: "And seck not the bad to give

im charity when you would not take it for yourselves save with
disdain’ (al-Bagarah, 2:267).

abel ptely Opdisd ae Ctl lyme Vy
ab | piaass Ot Y]

‘The text here implies disapproval (karthali) of giving defective things
in ebarity such as one would not accept from others, There is a hadith,
for example, in which the Prophet discouraged any prayers at midday

426 PRINCIPLES LAMIC JURISPRUDENCE

Hukm Shar't (Law or Value of Shariah) 427

until the decline of the sun with the exception of Priday. The actual
word used in the hadith is that the Prophet disliked (kariha al-nabi)
prayers at that particular time.*

saad ey Ye me SF ee sl ai ol o SX

d by al-Bukl hat ‘idle talk,

excessive questioning and extravagance have all been disapproved of

JW delay Spas y Uy Jo SIS

s, for example, in the hadith which
reads: ‘The most abominable of permissible things in the sight of God

We also read in another hadith recor

An equivalent term to malenth occ

is divore
GMa! St ae JO ail

Makrih may also be conveyed in the form of a prohibition but in
lan

wage that only indicates reprehens

ty. An example of this is
the aforementioned Qur'dnic text which states, in an address directed
to the believers, ‘O you who believe, ask not questions about things
which, if made clear to you, would trouble you, But if you ask about
them when the Qur’in is being revealed, then they will be explained
to you' {alsMs’idah, $101)

ce We SLs Ly 9S $F (SS ag of eletl ge Iyils Y
pS ag oa Sp
An example of this style of communication in the hadith is as follows

‘Leave that of which you are doubeful in favour of that which you
do not doubr."**

Hag Vb Sthiyb es

Makrth is the lowest degree of prohibition (tahrim), and in this sense
is used as a convenient category for matters that fall between halal and
harim, that is, matters which are definitely discouraged but where the
evidence to establish them as hardm is less than certain.

As already noted, the Hanafis have divided makmih into the two
types of makrith tanzihi and makrah tahrimt. The former is considered

abominable for purposes of keeping pure such as avoiding raw onion
and garlic just before going wo congregational prayers, or neglecting
salat al-najl, that is, supererogatory prayers preceding, for example,
the salt al-zuhr (carly afternoon prayers). This kind of maknth is
nearer to mubah than to anim. Its commission is not punished, but
its omission is rewarded. The Hanafi description of malenih tanziht is
the same as that which the majority of ‘ulami” have given to makeih in
general. The majority of “wlama’ have characterised the value of makth
to be that “committing it is not punishable but omitting it is praise
worthy’. Maknih talrimt or ‘abominable to the degree of prohibitior
is, on the other hand, nearer to hardm, An act is hardm when its prohi~
bition is decreed in definitive terms, otherwise it is makrih tahrimi, An
example of makrith sabrimi is the wearing of gold jewellery and silk
garments for men, which are forbidden by an ahdd (solitary) hadith
While referring to these two items, the hadith provides: "These are for-
bidden to the men of my community but are lawful to their women.”

apple OVI Goel Sle J OL > hia

Similarly, it is maknth tshrimi for a person to offer to buy something
fot which another person has already made an offer, There is a hadith
that forbids this kind of purchase in the same way as it forbids making
an offer of engagement to a woman who is already betrothed to
another man.

aed tee de hae Vy cl ee le dea Y
4 ost of Y

hadith are ahad whose authenticity is not
tion therein is reduced from hardm to

Since both of the foregoin
devoid of doubt, the prohi
maknih tahrimi.

The difference between the Hanafls and the majority of ‘wlama"
relates to the nature of the evidence on which the maknith is founded.
When a prohibition is conveyed in an imperative demand of the
Lawgiver but there is some doubt in its authenticity or meaning, the
majority of ‘wlama’ classify it as hanim, whereas the Hanafis classify it
as maketh tabrimt. The Hanafi position in regard to the division of
makrith into these two types is essentially similar to their approach in
regard to drawing a distinction between fard and witb.’

“Makrith tanzihi is a demand of the Lawgiver that is not conveyed

428 PRINCIPLES OF ISLAMIC JURISPRUDENCE

in emphatic or imperative terms, Committing maknih tanzthi does
not lead to punishment or moral blame, yet it does amount to
uch as consuming

neglecting that which is best and meritorio
horse meat at a time of war when horses are in short supply, or
making ablution with water left over by a cat or a meat-eating bird,
and also to abandon Sunnah mu‘akkadah and mandab.

1.5 Mubah (Permissible)

munication

Mubah (also referred to as halal and ja'iz) is defined as c
from the Lawgiver concerning the conduct of the mukallaf that gives
him the option to do or not do something. The Lawgiver’s commu-
nication may be in the form of a clear nays, such as the Qur'inic text
providing, in a reference to foodstuffs, that ‘this day all things good
and pure have been made lawful to you' (al-Ma’idah, 5:5)

bea SS Jol al

Altematively the text may state that the mukallaf will not incur a sin,
blame or liability if he wishes to act in a certain way. Concerning the
permissibility of betrothal, for example, the Qur'an states, "There is
no blame on you if you make an offer of betrothal to a woman’
(al-Baqarah, 2:235),

slat Aa oo ay pn so Lasd pSale clr Vy

Similarly, committing a sinful act out of sheer necessity is permissible
on the authority of the Qur’in, which provides, ‘If someone is com
pelled by necessity without wilful disobedience or transgression, then
he is guiltless’ (al-Bagarah, 2:173).*

ade A190 se Vy EU pb asl ond

Sometimes a command in the Qur'an may only amount to permis-
sibility when the nature of the conduct in question ot other relevant
evidence indicates that this is the case, An example of this is the text
that orders worshippers to ‘scatter in the earth’ once they have com
pleted the Friday prayers (al-Jumu‘ah, 62:10). Although the believers
have been ordered to ‘scatter in the earth’, the nature of this command
and the type of activity to which it relates suggest that it conveys
permissibility only

Hukm Shar't (Law or Value of Shari'ah) 429

In the event where the law provides no ruling to specify the value
ofa certain form of conduct, then according to the doctrine of istishab
al-ast (presumption of continuity), permissibility (ibahah) remains the
original state that is presumed to continue. The authority for this
presumption is found in the Qur'inic text which provides, in an
address to mankind, that God Almighty *has created everything in the
earth for your benefit’ (al-Baqarah, 2:29)

Lee 2) BG pS gle gs

By implication, it is understood that the benefit in question cannot
materialise unless “everything in the earth’ is made mubah for mankind
to use and to utilise in the first place.

Mubah has been divided into three types. The first is mubah that
does not entail any harm tw the individual whether he acts upon it
f not, such as eating, hunting or walking in the fresh air. The second
type of mubdh is that whose commission does not hann the individual,
although it is essentially forbidden. Included in this category are the
prohibited acts that the Lawgiver has made permissible on account of
necessity, such as uttering words of unbelief under duress, or eating
the flesh of a dead carcass to save one’s life. The third variety of mubdh
is not really mubah per se; itis included under mubdh for lack of a better
alternative. This category of mubdh, also known as ‘auf (forgiven),
consists of things that were practised at one time but were then
prohibited with the proviso that those who indulged in them before
the prohibition are exonerated. The Qur’in thus prohibits mariage
with certain relatives, and the text then continues to make an exeep>
tion for such marriages that might have occurred in the past (al-Nisi’,
4:22). Similarly, wine-drinking was not prohibited until the Prophet's
migration to Medina, and fell under the category of mubal until che
revelation of the dyah in stra al-Ma'idah (5:90) which imposed a total
ban on it.”

It would be incorrect, as al-Ghazll explains, to apply the term
mubah to the acts of a child, an insane person, or an animal, nor would
it be correct to call the acts of God mula. Acts and events that took
place prior to the advent of Islam are not to be called mubah either.
*As far as we are concemed, our position regarding them is one of
abandonment [tark|’, which obviously means that such activities are
not to be evaluated at all. Mubah proper, al-Ghazali adds, is estab-
lished im the express permission of Almighty God which renders the
commission ot omission of an act permissible either in religious terms

430 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Hulem Shari (Lave or Value of Shari'ah) 431

or in respect of a passible benefit or harm that may accrue from it in
this world.*

The ‘wlama’ of usill definitely consider mubai to be a hulem shar't,
although including it under al-hukm al-taklift is on the basis of mere
probability as there is essentially no liability [taki] in mubah. The
wdamd
five varieties of defining law. The Hanafis have only differed with the
majority with regard to the sub-division nd maketh as
already explained, but not with regard to mubih. Mubah is once again
divided into four types

(1) Acts that are mubdh on the individual level but wijib for the

of all schools have consistently included mubah as one of the

of witjib

community as a whole, For example, eating, drinking and marriage
are mubdh for the individual, but total abstinence from them is forbid-
den and they become obligations on the collective level. Similarly,
the choice of profession and employment is mubih for individuals,
but the community as a whole is under obligation to ensure the
survival of certain types of industry and trade

(2) Acts that are mubaly on the individual level but are mandib on
the collective level, Living in good style, cating the best food and
wearing clegant clothes, for example, are mandidb, but it is mubilh
for a nich individual nevertheless to lead a simple life, Yet it is
desirable (mandib) that wealthy people in general should live in an
appropriate style,

(3) Acts that are mubdl on an occasional basis but forbidden (hanim)
if pursued on a regular and habitual basis, For example, gossiping,
swearing or harshness to one’s child are mubih, but they become huanim
if practised regularly

(4) Some acts, although originally mubih, become maknih with
habitual performance. Playing chess or music, for example, or play-
ing with pigeons, are mubdh, but they become malenih if one spends
a considerable amount of time on such things

A single act may fall into one or more of these categories, depend
ing on the circumstances in’ which it is attempted. Marriage, for
example, may become obligatory upon a Muslim who has the neces~
sary means and feels assured that he will fall into sin without it. It may,
on the other hand, be mandab if he has the financial means and yet
does not see himself on the verge of committing sin without marriage.
And then marriage is makrih for one who fears being oppressive and
unjust to his wife, and eventually anim if one is certain that this will
be the case.” Bearing in mind the sub-division of wijib and maknith
that the Hanatis have added to al-hukm al-taklifi, the Hanafis thus

classify the latter into seven types, whereas the majority divide it into
five varieties only

Il. Declaratory Law (al-Hukm al-Wad‘7)

"Declaratory law’ is defined as communication from the Lawgiver
which enacts something into a cause (sabab), a condition (shart) or a
hindrance (mani') to something ele. This may be illustrated by
reference to the Qur'dnic text regarding the punishment of adultery,
which causes the act of adultery itself to be the cause of its punish-
ment (al-Bagarah, 2:24). An example of the declaratory law which
consists of a condition is the Qur’nic text on the pilgrimage of haf.
‘Pilgrimage is a duty owed to God by people who can manage to
make the journey’ (Al ‘Imran, 3:97)

Dee 4) EU oo coll a> AI ule by

Both of the foregoing texts, in fact, consist of a defining law and a
declaratory law side by side. The defining law in the first text is
the ruling that the adulterer must be punished with a hundred lashes,
and in the second text it is the duty of the haj/ pilgrimage itself,
The declaratory law in the first text is the cause, and in the second,
it is the condition that must be present if the law of the text is to
be implemented. The second of the ewo texts thus enacts the ability
of the individual to make the journey into a condition for perform
ing the pilgnmage. A more explicit example of « declaratory
law is the hadith stating that ‘there is no nikih without two
witnesses’.

vegas YY 1G Y

The presence of two witnesses is thus rendered a condition for a valid
marage. And lastly, an example of a declaratory law consisting of a
hindrance is the hadith providing that ‘there shall be no bequest to an
heir’**

wy dey Y
which obviously enacts the tie of kinship between the testator and

the legatee into a hindrance to bequest. Similarly, the hadith that lays
down the mule that ‘the killer shall not inherit’

432 PRINCIPLES OF ISLAMIC JURISPRUDENCE

_ fll oy Y

renders killing a hindrance to inheritance.*

The execution of the defining law is normally within the capacity
of the mukallaf. The demands, for example, addressed to the mukallaf
concerning prayers and zakdh are both within his means, Declaratory
on the other hand, be within or beyond the capacity of the
‘mukallaf. For instance, the arrival of a particular time of day which is
the cause (sabab) of salih is beyond the means and capacity of the
worshipper.

The function of declaratory law is explanatory in relation to defin~
ing law, in that the former explains the component elements of the
latter, Declaratory law thus informs us whether certain facts or events
suse, condition or hindrance in relationship to defining law
It is, for example, by means of declaratory law that we know offer
and acceptance in a contract of sale to be the cause of the buyer's
ownership, that divorce causes the extinction of marital rights and
obligations, and that the death of a person is the cause of the right of
the heir to his inheritance. Similarly, it s by means of a declaratory law
that we know intellectual maturity to be the condition of voluntary
disposition of property in gift (hibak) and chantable endowment (wif).

The basic notion of dividing the rules of Shariah into taklift and
wud't is also applicable to modern western law, When we read in the
rent act, for example, a clause that requires the tenant to pay the rent
in accordance with the tenancy contract, this is a hukm taklift which
consists of a command. Similarly, when there is a clause which requires
the tenant not to use the premises for commercial purposes, this is a
demand consisting of a prohibition. And if there is a clause to the
effect that the tenant may sublet the property, this is an option that the
tenant may or may not wish to exercise. Needless to say, any aspect
of such provisions may be subjected to such conditions or hindrances
as the contracting parties may wish to stipulate.*s

As noted above, declaratory law is divided into five varieties. The
first three of these, namely, cause, condition and hindrance, have already
been discussed to some extent. Two other varieties that are added to
these are the ‘azimah (strict law) as opposed to rukhsals (concessionary
law), and valid (sahih) as opposed to invalid (bail). To include the first
three under al-hukm al-wad't is obvious from the very definition of
the latter. But classifying the last wo divisions under al-hulem al-wad't
may need a brief explanation. It is well to point out in this connection

are the

Hukm Shar't (Law or Value of Sharah) 433

that almost every concession that the Lawgiver has granted to the
individual is based on certain causes which must be present if
the concession is to be utilised. The Lawgiver, for example, enacts
travelling, illness or removal of hardship into the cause of a conces-
sion in regard to, say, fasting or salah, which is why “azimah and
nukehsah are classified under al-hukm al-wad't. Having said this, we note
that many ‘wlamd" of usil have differed and classified ‘azimah and
rukhgah under bukm taklifi. In classifying sahth and bapil as sub-
divisions of declaratory law, it will be further noted that a hum is
valid when the conditions of its validity are fulfilled, and is invalid if
these conditions are not met, In short, since the last two divisions are
basically concemed with causes and conditions, they are included
under the class of declaratory law. We shall now proceed to discuss
each of the five varieties of al-hukm al-wad't separately, as follows

IL. Cause (Sabab)

A sabab is defined as an attribute that is evident and constant (sas
zihir wa-mundabat) and which the Lawgiver has identified as the
indicator of a bukm in such a way that its presence necessitates the
presence of the jukm and its absence means that the hukm is also
absent. A sahab may be an act that is within the power of the mukallaf,
such as murder and theft in their status as the causes of retaliation
(qisds) and a badd penalty respectively. Alternatively, the sababh may
be beyond the control of the mukallaf, such as minority being the
cause of guardianship over the person and property of a minor. When
the sabab is present, whether it is within or beyond the control of the
mukallaf, its effect (Le. the musabbab) is automatically present even if
the mukallaf had not intended it to be. For example, when a man
divorces his wife by a revocable jalig, he is entitled to resume marital
relations with her even if he openly denies himself that right. Similarly,
when a man enters into a contract of marriage, he is obligated to
provide dower and maintenance for his wite even if he explicitly
stipulates the opposite in their contract. For once the Lawgiver
identifies something as a cause, the effect of that cause comes about
by virtue of the Lawgiver's decree regardless of whether the mukallaf
intended it to be so or not.*?

The presence of a sahab necessitates the presence of a hukm, whether
or not the sahab is harmonious (mundsib) with the hukm, although some
Swlama’ of usil draw a distinction between sabab and “illah on this very
basis. Sabab is thus reserved for'a cause that is not harmonious with

434 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Huey

Shari (Law or Value of Shari‘ali) 435

the hukm, whereas a cause that is in harmony with its hukm is known
as an ‘illah. To illustrate this point, murder is the ‘illah of the law of
retaliation and so is travelling, which is the ‘illah of concession not to
observe the fast of Ramadan. In both cases the ‘illah is harmonious
with its bukm. But when we say that the decline of the sun is the
cause (sabab) of the forenoon prayer, or that sighting the moon of
Ramadan is the sabab of fasting, we cannot ascertain the harmony of
the cause with the bukm, There is also a difference between ‘illah,
sabab and hikmah in that hikmah refers to the benefit that is obtained
from, of a harm that is prevented by, a particular bul. Hikmah is
also not an indicator of the hukm in all situations in that the presence
or absence of the one does not necesanly have the same consequence
for the other. Sabab is then of two kinds: one of which is a sabab that
is within the capacity of the mukallaf, such as travelling being the
sabab/"illah of breaking the fast; and one that is beyond the control
of the mukallaf, such as the decline of the sun being the sabab of the
forenoan prayer

Il,2 Condition (Shari)

A shart is defined as an evident and constant attribute whose absence
necessitates the absence of the hukm but whose presence docs not auto~
matically bring about its object (mashnif). For example, the presence
of a valid marriage is a precondition of divorce, but this does not
mean that when there is a valid marriage, it must lead to divorce.
Similarly, the ablution (wudi’) is a necessary condition of salah, but
the presence of wudii' does not necessitate salah, A condition normally
complements the cause and gives it its full effect, Killing is, for exam~
ple, the cause of retaliation; however, this is on condition that it is
deliberate and hostile. The contract of marriage legalises/causes sexual
enjoyment between the spouses; however, this is on condition that
two witnesses testify to the marriage. The legal consequences of a
contract are not fully realised without the fulfilment of its necessary
conditions. A condition may be laid down by the Lawgiver, or by the

aukallaf. Whenever the former enacts a condition, it is referred to as
shart shar, or “legal condition’, but if it is a condition stipulated by
the mukallaf, it is referred to as shart ja'lt, or ‘improvised condition’.
An example of the former is witnesses in a marriage contract, and of
the latter, the case when spouses stipulate in their marriage contract
the condition that they will reside in a particular locality. A. shart
may be attached either to the hukm or to the cause of the hukm. An

example of the former is the condition that legal alms (zakali) falls
due upon the expiry of one year. The absence or non-fulfilment of
this shart means that the hukm, or the obligation of zalkiah, is also absent
Similarly, it isa condition of valid sale that the seller is able to deliver
the subject- matter of the sale and the absence of this condition directly
invalidates the sale. An example of the shart that is attached to the
cause of the hukm rather than the hukm itself is the condition that
killing must be deliberate in order to constitute the valid cause of
retaliation. In this example, killing is the cause of retaliation and the
condition that it must be intentional is attached to the cause rather
than to the hukm directly. A command becomes effective by the
presence of its cause (sabab) and it becomes binding by the fulfilment
of its condition. A command, in other words, is not enforceable
before its condition is fulfilled.

‘Shar also differs from rukrt (pillar, essential requirement) in that the
latter partakes of the essence of a thing. This would mean that the
law, or hukm, could not exist in the absence of its nikn, When the
whole or even 3 part of the nuk is absent, the hukm collapses com-
pletely, with the result that the latter becomes null and void (bail)
A shart, on the other hand, does not partake of the essence of a hukm,
although it is a complementary part of it. Bowing and prostration
(uka® and sajdah), for example, are each an essential requirement
(nukn) of salah and partake of the very essence of salah, but ablution
isa condition of salah as it is an attribute whose absence disrupts the
salah but which does not partake of its essence."

IL3 Hindrance (Mani‘)

A mani® is defined as an act or an attribute whose presence either
nullifies the hukm or the cause of the hukm. In either case, the result
is the same, namely, that the presence of the mani’ means the absence
of the hukm. For example, difference of religion and killing, are both
obstacles to inheritance between a legal heir and his deceased relative,
despite the fact that there may exist a valid tie of kinship (gardbah)
between them: when the obstacle is present, the hukm, which is
inheritance, is absent.

From the viewpoint of its effect on the cause (sabab) or on the hukm
itself, the mani’ is divided into two types. First, the mani’ which affects
the cause in the sense that its presence nullfies the cause. An example
of this is the indebtedness of a person who is liable to the payment
of zakih, The fact of his being in debt hinders the cause of zakah,

436 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Hukm Shar't (Law or Value of Sharfah) 437

which is ownership of property. A person who is in debt to the extent
of insolvency és no longer considered, for purposes of zakith, to be
owning any property at all. Thus when the cause is nullified, the hukem
itself, which is the duty to pay zakah, is also nullified. Secondly, there
is the hindrance which affects the hukm. The presence of this type of
hindrance nullifies the bukm directly, even if the cause and the condi
tion are both present. An example of this is paternity, which hinders
retaliation: if a father kills his son, he is not liable to retaliation although
he may be punished otherwise. Paternity thus hinders retaliation
according to the majority of ‘wlama’ (except Imam Malik) despite the
presence of the cause of retaliation, which is killing, and its condi~
tion, which is hostility and the intention to kill. Imam Malik has held,
on the other hand, that the father may be retaliated against for the
deliberate killing of his offspring.“

The mukallaf is under duty to observe the provisions of the law
pertaining to sabab, shart and mani‘. There are certain restrictions that
the law imposes, in the area of contracts, for example, on the liberty
of the parties to insert conditions and stipulations into the terms of a
given contract, Broadly speaking, a condition should not violate the
esence of a contract, nor should it seek to circumvent the basic
purpose of an act. To sell a book on condition that is not read, of sell
it when one is not able to deliver it, are the sorts of conditions that
go against the purpose and essence of sale. The madhdhib have differed
on the extent of the liberty that the individual enjoys in the area of
contracts and stipulations and the Hanball school is the most liberal
on this subject

We also note with regard to mani’ that it is not permissible for the
mukallaf to create deliberate impediments so as to circumvent the
commands of the Shari'ah. The subject here is once again somewhat
controversial and falls under what is known as hiyal (legal stratagems),
most of which are suspect, although there may be some that serve a
legitimate purpose, A man who is liable to zakih should not, for
example, make a gift of his property to his wife before the lapse of
the year and then take it back from her after the expiry of the year,
all with the purpose of avoiding the payment of 2akdh

IL.4 Strict Law (‘Azimah) and Concessionary Law
(Rukhgah)

A law, of hukm, san ‘azimah when its rigour is primary and unabated,
without reference to any attenuating circumstances that may soften

its original force or even entirely suspend it. It is, in other words, a
law as the Lawgiver had intended it in the first place. For example,
salah, zakah, the hajj, jihad, etc., which God has enjoined upon all
competent individuals, are classified under ‘azimah. A law, or hukm,
is a rukhsah, by contrast, when it is considered in conjunction with
attenuating circumstances. Whereas ‘azimah is the law in its normal
state, nukhgah embodies the exceptions, if any, that the Lawgiver has
granted with a view to bringing facility and ease in difficult circum-
stances. Thus the law that grants a concession to travellers to break
the fast during Ramadin is an exception to the norm that requires
everyone to fast. The concessionary law in this case is valid only for
the duration of travelling, after which the ‘azimah must be complied
with again. Similarly, if a Muslim is compelled to renounce his faith,
he is permitted to do so even though the strict law would require him
to persist in his faith until death, The excuse in this case is founded
in the right of the person to life, and is clearly granted in the Qur'in
(al-Nabl, 16:106), which allows the utterance of words of infidelity
under duress, Strict law may consist of either commands or prohibitions.
Thus the prohibition of murder, theft, adultery, wine-drinking, etc.,
are all instances of ‘azimah in the Qur'an.”

‘Azimah is a command of the Lawgiver that binds the mukallaf,
while nudehyah embodies a concession in respect of that command. The
two ae interrelated in that nukhgah can only exist when there is
‘azimah in the first place. God Almighty has not made, for example,
fasting in the month of Shawwal (the month following Ramadan)
obligatory upon Muslims. This is not a concesion, as no obligation
exists in the first place. Similarly, the normal state of ibahah regard
ing food and drink is not nulhsah, whereas the permission to cat
prohibited meat in certain circumstances is nukhyah, It would also be
incorrect to call the permissibiliry of tayammum (i.e. dry ablution with
¢lean earth ot sand) in the absence of water a nukhsah: when there is
no water it is not possible to make an ablution proper (wudi’) in the
first place, But tayammum is a rukhsah if it is a substitute for wud’
when the weather is extremely cold. The point is that in mkhsah the
individual must be able to take an alternative course of action.’

Rukhsah occurs in any of four varieties. Firstly, in the form of
permitting a prohibited act on grounds of necesity, such as eating
the flesh of a carcass, and drinking wine at the point of starvation or
extreme thirst. Secondly, nuklijah may occur in the form of omitting
a wajib when conformity ¢o that wijib causes hardship, such as the
concession granted to the traveller to shorten the quadruple saldh, or

438 PRINCIPLES OF ISLAMIC JURISPRUDENCE

‘Hulem Shari (Law or Value of Shariah) 439

not to observe the fasting of Ramadin, Thirdly, in the area of trans-
actions, nuklgah occurs in the form of validating contracts that would
normally be disallowed, For example, lease and hire (ijarah), advance
sale (salam) and order for the manufacture of goods (istignd') are all
anomalous, as the object of contract therein is non-existent at the
time of contract, but they have been exceptionally permitted in order
to accommodate the public need for such transactions. And lastly,
rukhyak occurs in the form of concessions to the Muslim wmmah from
certain rigorous laws that were imposed under previous revelations
For example, zakth to the extent of one-quarter of one’s property,
the non-permissibility of salah outside a mosque, and the illegality of
taking booty (jc. ghanimah), which were imposed on people under
previous religions, have been removed by the Shariah of Islam.”

IL5 Valid, Irregular and Void (Sahih, Fasid, Baril)

These are Shart ah values that describe and evaluate legal acts incurred
by the mukallaf. To evaluate an act according to these criteria depends
on whether oF not the act in question fulfils che essential requirements
(arkdn) and conditions (shun@f) that the Sharfah has laid down for it,
and whether or not there exist any obstacles to hinder its proper
conclusion. For example, salah is 9 shart act and is regarded as valid
when it fulfils all the essential requirements and conditions that the
Shari'ah has provided in this regard. Conversely, saldh becomes void
when any of its esential requirements and conditions are lacking.
Similarly, a contract is described as valid when it fulfils all its neces-
sary requirements and where there is nothing to hinder its conclusion;
otherwise it is void. When salah is performed according to its require=
ments, it fulfils the wijib, otherwise the wijib remains unfulfilled. A
valid contract gives rise to all its legal consequences whereas a void
contract fails to satisfy its legal purpose.

The ‘lama’ are in agroement that acts of devotion (‘ibaidaf) can either
be valid or void, in the sense that there is no intermediate category
in between. Legal acts are valid when they fulfil all the requirements
pertaining to the essential requirements (arkdn), causes, conditions and
hindrances, and are void when any of these is lacking or deficient
An act of devotion that is void is non-existent ab initio and of no
consequence whatsoever. The majority of “wlamna’ have maintained a
similar view with regard to transactions, namely, that a transaction is
valid when it is complete in all respects. Only a valid contract of
sale, for example, can give rise to its legal consequences, namely, the

transfer of ownership of the object of sale to the buyer and establish
ing the vendor's ownership over its price (shaman). A contract is void
when it is deficient in respect of any of its requirements, although the
Hanafls are in disagreement with the majority regarding the precise
nature of this deficiency. The majority of ‘wlamd’ maintain that inva~
lidity is a monolithic concept in that there are no shades and degrees
of invalidity. An act or transaction is either valid or void, and there
is nothing in between. According to this view, fasid and baril are two
words with the same meaning, whether in reference to devotional
matters of to civil transactions. Likewise, to the majority it makes no
difference whether the deficiency in a contract affects an essential
element (nukn), such as the sale of a dead carcass, of a condition, such
as sale for an unspecified price; both are void and non-existent ab
i

tio,
The Hanafis have, however, distinguished an intermediate category
between the valid and void, namely the fasid, When the deficiency
in a contract affects an essential requirement (nukn), the contract is
null and void and fulfils no legal purpose. If, however, the deficiency
ina contract only affects a condition, the contract is fdsid but not void.
A fisid contract, although deficient in some respects, is still a contract
and entails some of its legal consequences, but not all. Thus a fasid
contract of sale establishes the purchaser's ownership over the object
of sale when he has taken possession thereof, but does not entitle the
purchaser to the usuffuct (intifi’). Similarly, in the case of an irregular
contract of marriage, such as one without witnesses, the spouses or
the gadi must either remove the deficiency or dissolve the marriage,
even if the marriage has been consummated. If the deficiency is
known before consummation, the consummation is unlawful, But the
wife is still entitled to the dower (mahr) and must observe the wait
ing period of “iddah upon dissolution of marriage, The offspring of a
“fasid marriage is legitimate, but the wife is not entitled co mainte-
nance, and no right of inheritance between the spouses can proceed
from such a mamage.

The Hanafis describe the sid as something that is essentially lawful
(mashri') but is deficient in respect of an attribute (way) as opposed
to the batil which is unlawful (ghayr mashni) on account of its defi-
dency in regard to both essence (ay!) and attribute. The Hanafl approach
to the fisid is also grounded in the idea that the deficiency that affects
the attribute but not the essence of a transaction can often be removed
and rectified. If, for example, 2 contract of sale is concluded without
assigning a specified price, it is possible to specify the price (thaman)

440 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Hukm Shar't (Law or Value of Shariah) 441

after the conclusion of the contract and thus rectify the irregularity
at a later time, that is, as soon as it is known to exist or as soon as
possible,”!

Ill. The Pillars (Arkan) of Hukm Shari

The hukm shar'i, that is, the law or value of Shariah, consists of three
exential components. First of all, the juckom must have been authorised
by the hakim, that is, the Lawgiver; it must also have a subject-matter
which is referred to as mableim ik, and then an audience, namely, the
mahkiim ‘alayh, who must be capable of understanding or at least of
receiving the bukm. We shall treat each of these under a separate

heading, as follows.

IIL.1 The Lawgiver (Hakim)

The ‘ulama’ are unanimous that the source of all law in Islam is God
Most High, whose will and command is known to the mullaf
cither directly through divine revelation, or indirectly by means of
inference, deduction and ijtihdd. The Que’in repeatedly tells us that
‘the prerogative of command belongs to God alone’ (Al ‘Imrin,

6:57)
Sy Sti 9

We read in another text: “And it behoves not a believing man oF
woman, when God and bis Messenger have decided on a matter, to
have any option above their decision’ (al~Abzib, 33:36)

Vl ah peiyy ch pia 13] dango Vy gregh ol Ley
pal ish! bo of

Law and justice in the Muslim community must derive their validity
and substance from the principles and values that the Lawgiver has
sanctioned. This is the purport of the Qur’anic text in sira al-Mi'idsh
(3:45 and 5:49) which declares as unbelievers those who refuse to
accept the authority of the divine law. Even the Prophet does not
partake of the prerogative of command, as his command, of that of
the ruler, the imam, the master or the father for that matter, does not
constitute binding authority in its own right; instead, obedience to

such individuals is founded in the command of the Lawgiver. Neither
is human intellect, or ‘agi, alone, a source of law in its own nght.*

The ‘ulama’ are in disagreement, however, as to the way in which
the will or the hukm of the Lawgiver regarding the conduct of the
mukailaf is to be known and identified. Can we know it by means of
our intellectual faculty without the aid and mediation of messengers
and scriptures, or is the human intellect incapable of ascertaining the
law without divine guidance? A similar question arises concerning
harmony and concordance between reason and revelation, in that
when the human intellect determines that something is good (hasan)
or evil (qabih), is it imperative that the hukm of the Lawgiver should
be identical with the dictates of reason? In response to these questions,
the ‘ulama’ have advanced three different views, which are as follows.

Firstly, the Ash‘arites, namely the followers of Abu'l-Hasan al-Ash‘art
(& 314 AH), maintain that it is not possible for human intellect to
determine what is good and evil in the conduct of the mukallaf, or to
identify the hukm of the Lawgiver conceming the conduct of the
mukallaf, without the aid of divine guidance. For human reasoning and
judgment are liable two err. While an act may be evaluated by one
person as good, another person may say the opposite, We normally
‘ay, for example, that honesty is good, but when it is likely to cause
the death of an innocent person in the hands of a tyrant, it may be
regarded as evil. It is therefore not for the human intellect to deter-
mine the values of things, and we cannot say that what the ‘ag! deems
to be good is necessarily good in the sight of God, or that what it
considers evil is also evil in His sight. The Ash‘arites thus maintain
that right and wrong are not determined by reference to the nature
of things, or our perception thereof, but are determined by God. This
is because things are not good and evil by their nature, How can,
then, the human intellect be expected to perceive that which is non-
existent in the state of nature? When the Lawgiver permits or
demands an act, we know that it is right/good, and when He forbids
an act, it is certain that the act in question is wrong/evil, Hence the
criterion of right and wrong is shar’, not ‘agl. According to this view,
which is held by the majonty of ‘xlamd’, what the law commands is
good and what it forbids is evil. This view accords with what is
known as the principle of the rule of law (also known as the principle
‘of legality) which establishes that a man is not required to do something
or to avoid doing it unless the law has been communicated to him in
advance. No one is either rewarded for an act or punished for an omtis-
sion unless he knows its status by means of a clear communication,

442. PRINCIPLES OF ISLAMIC JURISPRUDENCE

Hukm Shar't (Law or Value of Shariah) 443

Thus when a person happens to be living in total isolation and has
never received the message of the Lawgiver, he is not a mukallaf and

deserves neither reward nor punishment, This view quotes in support
the Quranic proclamation: "And We never punish until We send a
messenger’ (al-Isra, 17:15)

Vopr ons oe melas LS Lay

which indicates that reward and punishment are based on the
revealed law, not the human intellect. Elsewhere in the Qur'an, we
ad, in a reference to the purpose of divine revelation, "So that
after the coming of messengers, mankind would have no plea against
God’ (alt

5’, 4163).

pe ay ane dit gle (il 055

In yet another place the Que'dn affirms thar punishment is imposed
only after the people are duly warmed but not before: in a reference
to the disbelievers, the Qur'in thus proclaims: ‘Had We inflicted on
them a penalty before this (revelation), they would have said: Our
Lord! If only you had sent us a messenger, we would have followed
your signs’ (T3-Ha, 20:134)

ee Ed bay LY aL oe Gldlay patel Uf Sy
EuT aah Vey Ll

The Ash'arites maintain the view that the commands of the
Lawgiver relate to the conduct of the mukallaf only after the advent
of Islam and that prior to this event there is no basis for obligation.
Infidelity (uff) is not harim, nor is faith (imin) wajib before the
revelation actually declares it so,”

Secondly, the Mu‘tazilah, that is the followers of Ibrahim. al-
Nazzim, have held the view that human intellect can identify the law
of God regarding the conduct of the mukallaf even without the medi-
ation of scriptures and messengers. The sha? only removes the curtain
from what the ‘ag! itself can perceive, and in essence the former is
identical with the latter, The intellect (‘aq!) can identify the good and
evil in human conduct by reference to its benefit and harm. God's
law concerning the conduct of the mukallafis not only identifiable by
the human intellect but is also identical with the dictates of the human

intellect. God only asks the mukallaf to do what is beneficial and
forbids him from doing what is harmful. Whatever the ‘agl sees as
good oF right, is also good in the sight of God, and vice versa. A person
who acts against the requirement of reason may therefore be punished
and one who acts in harmony with it may be rewarded. In this way,
a person who has received no communication from the Lawgiver can
still be considered a muleallaf and be held responsible on the basis of
reason, and his punishment or reward can be determined accordingly.
The Mu'tazilah assert that it is impossible for God to command some-
thing that is inherently evil or to prohibit something that is intrinsi-
cally good, which obviously means that shar and ‘agl are always in
agreement with one another.”

The Mu‘tazilah thus maintain that good and evil are inherent in
the nature of things and the Qur'an confirms this: for example, God
‘permits them the pure things and forbids them [from consuming)
what is unclean’ (al-A‘rif, 7:137)

SL gle py Sibel oh bey

This implies that things were clean or unclean even before the
revelation of the Qur'an, and that they did not acquire these qualities
after their permussibility or prohibition. Similarly, when God Most
High informed us that wine and gambling were unclean (rjsun) of
that adultery was evil (fahishatun), the same qualities were present in
them even before the text declared them as such. The Mu'tazilah
position here is generally acceded, and so is their view regarding the
ability of the human intellect to perceive the good and evil in things
But this is only crue, as Ibn Qayyim al-Jawaiyya has observed, in a
general sense, while the Sharah provides the denails. Human reason
can thus usually perceive the good and evil in things, such as perceiv-
ing the beauty of justice, but is unable to determine whether this or
that specific act is just or unjust without the aid of shar, Human reason
is thus incapable of providing specific and detailed guidance in all
matters, When it is said that human reason can detect good and evil,
this does not mean a total and absolute capacity, in the sense that it
is liable to err and may be incorrect in its evaluation.

‘Al-Ghazill is critical of the Mu‘tazill view for its propensity to turn
the determination of good and evil into a totally relative proposition.
When an act is agreeable to one person and disagreeable to another,
it is good from the viewpoint of the former and evil from that of the
latter, Such a relativistic and circumstantial approach to good and evil

444. PRINCIPLES OF ISLAMIC JURISPRUDENCE

Hukm Shari (Law or Value of Shariah) 445

is totally unacceptable. The Shari“ah does not and cannot operate on
this basis. Instead, the Shari'ah evaluates the acts and conduct of the
mukallaf on an objective plane regardless of whether they agree or
disagree with particular interests. When the Lawgiver commands an
act, or when He praises it, it is praiseworthy and good in all cases
Al-Shawkint is also critical of the Mu'tazili view, and highlights some
of its weaknesses by saying that certain areas of human conduct are
not amenable to rational evaluation. It is true that ‘agl can determine
the value, say, of truth and falsehood, as truth is beneficial and lying
is harmful, “Ag! can also discem the value of saving the life of a
drowning or of a starving man, yet it cannot determine the virtue of
fasting on the last day of Ramadin or the enormity of fasting on the
day that follows it. The good and evil in this case can only be deter-
mined by shar’, not by ‘agl.”* Most of the ‘ibddat, including salah and
the pilgrimage of haji, fall into this category. The human intellect may
be able to perceive a value in them only because of a benevolence
and grace (lu) therein which prevents obscenity and corruption; but
‘agi alone is unable to assess the precise value of *ibadar.®

The Mu'tazill approach to the question of right and wrong
embodies a utilitarian approach to jurisprudence in the sense that a good
law is that which brings the greatest benefit to the largest number.
Right and wrong are evaluated from the viewpoint of the benefit and
harm that they entail to the person who acts upon it and to others
Acts that do not relate to this context are simply regarded as of no
consequence; they are branded as ‘abath, that is, torally ‘in vain’

Thirdly, the Maturidis, namely the followers of AbO. MansOr al-
Maturidt (d. 333 Ant) have suggested a middle course, which is adopted
by the Hanafls and considered to be the most acceptable. According
to this view, right and wrong in the conduct of the mukallaf can
indeed be ascertained and evaluated by the human intellect. But this
does not necessarily mean that the law of God in regard to such conduct
is always identical with the dictates of ‘agl, for human intellect is liable
to err. The knowledge of right and wrong must therefore be based
on divine communication, This view basically combines the two
foregoing opinions, but tends to lean more toward the Ash‘arites in
that the responsibility of the mukallaf is to be determined not with
reference to the dictates of human reason but on the basis of the law
as the Lawgiver has communicated it, “Agi is capable of discerning
good and evil, but this evaluation does not constitute the basis of
reward and punishment, which is a matter solely determined by the
Lawgiver, Whatever the Lawgiver has commanded is right, and merits

reward, and whatever He has forbidden is wrong and its perpetrator
is Yable to punishment. This view also agrees with that of the
Mb ‘tazilah to the extent of its recognition that the inherent values of
things are discemible by human intellect, which can perceive and
detect values in the nature of things. The Maturidis, however, differ
with the Mu'tazilah in that they hold that no reward or punishment
can be granted on the basis of ‘ag/ alone.”

TIL.2 The Subject-Matter of Hukm (al-Mahkiim Fih)

Mahkeim fth denotes the acts, rights and obligations of the mukallaf that
constitute the subject-matter of a command, prohibition or permis
sibility. When the ruling of the Lawgiver occurs in the forms of either
wijib or mandiib, in either case the individual is required to act in some
way. Similarly, when the hulm of the Lawgiver consists of a prohi~
bition (tabrim) or abomination (kardhah), it s once again concerned
with the conduct of che mukallaf. In. sum, all commands and prob
bitions are concerned with the acts and conduct of the mukallaf.

When the demand of the Lawgiver occurs in the form of a defin-
ing law (al-huke al-takliff) such as fasting, jihad, the payment of zakdh,
ctc., the subject-matter of the hukm is the act of the mukallaf
Similarly, when the demand of the Lawgiver occurs in the form of
declaratory law (al-hulem al-wad't), such as ablution (wuda') being a
condition of salah, or sale which is the cause (sabab) of ownership, or
killing which isa hindrance (min) to inheritance, the subject-matter
of the bidkm in all these consists of the act of the mukallaf.®* Occasionally,
the mabkim fth does not consist of the conduct of the individual, but
even then it is related to it. For example, the arrival of Ramadin
which is the cause (sabab) of fasting is not an act of the individual, but
is related to the latter in the sense that the effect (musabhal) of
that cause, namely the fasting, consists of the act of the mukallaf. In
order to constitute the subject-matter of a hukm, the following three
conditions must apply.

(1) The individual must know the nature of the conduct so that
he can perform what is required of him or refrain from that which is
forbidden. An ambivalent text or 2 locution that does not impart
this knowledge cannot constitute the basis of either a command or
prohibition. The ambivalent (mujmal) text of the Qur'an concerning
saléh, zakith and hajj, for example, did nor obligate anyone until these
matters were explained and clarified by the Prophet. The manner in
which these obligations were to be discharged was also explained in

446 PRINCIPLES OF ISLAMIC JURISPRUDENCE

precise terms. Furthermore, the ‘ulama’ are in agreement that the
necessary instruction or explanations must not be delayed and must
be given in the time when they are needed, otherwise they will fail
to provide the basis of obligation

‘When we say that the
he is required to do, this means that it should be possible for him to
obtain such knowledge. Hence when a penon is in full possession of
his capacities and it is possible for him to leam the law, he is presumed
to know his legal obligations. The law is therefore applied to him, and
his ignorance of the rules of Shari'uh is no excuse, for if actual knowl
ent of the law, it would

ndividual must know the nature of the act

edge by the individual were to be a requirer

be very difficult to prove such knowledge in all cases of violation. It
is therefore sufficient to ensure that the individual can acquire knowl
edge of the Sharf ah either directly or by asking those who have such
knowledge:

(a) The act that the individual is required to do must be within his
capability, of, in the case of a prohibition, be within his capability
to avoid. No law may thus demand something that is beyond the
capacity of the individual. The principle here is clearly stated in the
Qur'in, which declares that ‘God does not obligate a living soul
beyond the limits of his capacity’ (al-Baqarah, 2:286)

Upaey Y) Lent I IS Y

and that ‘God pats no bur
given him’ (al-Tallq, 65:7),

jen on any person beyond what He has

BUT L yy a Bt GIS ¥

An act may be conceptually unfeasible, such as asking a person to be
awake and asleep at the same time, or asking him to do and not to do
something simultaneously. Likewise, an act may be physically impos-
sible, such as ordering a person to fly without the necessary means. No
‘one may be required to do the impossible, and it makes no difference
whether the act is impossible by its nature or whether it is beyond
the capacity of the individual in view of his particular conditions."
A corollary of this rule is that no person may be obligated to act
on behalf of another person or to stop another competent individual
from acting, for this would be tantamount to asking a person to do
the impossible. No one may therefore be legally obligated to pay the
zakih on behalf of his brother, or to perform the salah on behalf of

Hulem Shari (Law or Value of Shar ali) 447

his father, or to prevent his neighbour from committing theft. All
that one mukallaf may be lawfully expected to do in such situations
is to give good advice (nasthah) as part of his general duty to promote
good and to prevent evil to the extent that this is possible for him as
a law-abiding citizen,

Similarly, no-one may be obligated to do or not to do something
in regard to which he has no choice, such as asking someone to act
against his natural and biological functions. Thus when we read in
the hadith a command asking the Muslims to ‘avoid anger [la taghdab]’,
although the manifest (zdhir) terms of this hadith demands avoidance
of a natural phenomenon, what it really means is that the adverse
consequences of uncontrolled anger which might lead to taking
the law into one’s own hands must be avoided. To give another
example, the Qur'an orders the believers “not to despair over matters
that have passed you by, nor to exult over the favours that are
bestowed upon you' (al-Hadid, $7:23)

pile El Vy SHU le Leb
Pleasure and despair are natural phenomena, and as such they are
basically beyond the individual's control, What is really meant here
is that one should avoid the consequences of despair such as violence
against oneself or another person, and ensure that joy and happiness
do not lead to arrogance and contemptuous behaviour. There is, of
course, some hardship involved in all obligations, The kind of hardship
that people can tolerate without prejudice or injury is not the aim. It
is intolerable hardship that the Sharfah does not impose. The Sharf‘ah,
for instance, forbids continuous fasting (jawm al-uiyal), or staying up all
night for worship. Furthermore, the Sharf ah has granted certain conc
sions with a view to preventing hardship to individuals, and it is strongly
recommended that they be utilised. ‘This is the purport of the reminder
contained in the hadith that “God loves to see that His concessions are
taken advantage of, just as He hates to see the commission of a sin."

wepams GP be Si LS wary Sp ot os ai of

In another hadith we read an address to the believers, where they are

asked to “fulfil your duties to the extent of your ability

wD piebad Le Sle pe Ip

448 PRINGIPLES OF ISLAMIC JURISPRUDENCE

which obyiously means that legal obligations are only operative
within the limits of one's capacity

A bukm shat? may sometimes impose unusual hardship on the
individual, such as the fulfilment of certain collective obligations like
jihad (holy struggle) and hisbah, that is, the promotion of good and
prevention of evil, under adverse conditions. Jihdd, which requires
the sacrifice of one’s life, is undoubtedly onerous in the extreme, but

it is deemed necessary and warranted in view of the values that are
upheld and defended thereby."

(4) Lastly, the demand to act or not to act must originate in an
authoritative source that can command the obedience of the muleallaf.
This would mean that the hukm must emanate from God or His
Messenger. It is mainly due to this requirement that the proof or
evidence in which the law is founded must be identified and explained.
Consequently, we find that in their juristic expositions, the fugahd’
normally explain the evidential basis (hujjiyyah) of the rules of Shari'ah
that they expound, especially rules which are aimed at regulating the
conduct of the mukallaf.”

The next topic that needs to be discussed under the subject-matter
of hukm is the division of rights into the two categories of hagg Allah
and hagg al-‘abd,

The acts of the mukallaf may consist of either a right of God (hag
Allah) or a right of man (haqq al-‘abd), ot of a combination of both,
The right of God is called so not because it is of any benefit to God,
but because it is beneficial to the community at large and not merely
to a particular individual. It is, in other words, a public right and differs
from the right of man, or private right, in that its enforcement is 3
duty of the state, The enforcement of a private right, on the other hand,
is up to the person whose right has been infringed, and who may or
may not wish to demand its enforcement.” The ‘ulamd” have further
classified these rights into four main categories, which are as follows,

Firstly, acts that exclusively consist of the right of God, such as acts
of devotion and worship, including salah and jihid, which are the
pillars of religion and are necessary for the establishment of an Islamic
order. These, which are often referred to as hugiig Allah al-khaliyah, oF
‘pure Rights of God’, occur in eight varieties

(a) Rights of God which consist exclusively of worship, such as
professing the faith (iman), salah, zakah, the pilgrimage and jihad.

(b) Rights which consist of both worship and financial liability
(ma'iinah), such as charity given on the occasion of ‘id al-fifr, mark~
ing the end of Ramadan. r

Hulkem Shari (Law or Value of Sharali) 449

(c) Rights in which financial liability is greater than worship, like
the tithe that is levied on agricultural crops.

(a) Rights of God which consist of financial liability but have a
Propensity toward punishment, such as the imposition of khardj tax
on land in the conquered territories.

(¢) Rights which consist of punishment only, like the hudad, that
is, the prescribed penalties for theft and adultery, and so forth,

(f) Rights which consist of minor punishment (‘wgiibah gdsirah),
such as excluding the murderer from the inhentance of his victim.
This is called ‘ngidbah qajirah on account of the fact that it inflicts only
a financial loss.

(g) "Punishments which lean toward worship’, such as the penances
(leaffaran),

(h) Exclusive rights, in the sense that they consist of rights alone and
are not necessarily addressed to the mukallaf, such as the community
right to mineral wealth of to the spoils of war (ghamdim).

Secondly, acts that exclusively consist of the rights of men, such as
the right to enforce a contract, or the right to compensation for loss,
the purchaser's right to own the object he has purchased, the vendor's
right to own the price paid to him, the right of pre-emption (shuf")
and so on. To enforce such rights is entirely at the dispoual of the
individual concemed; he may demand them or waive them, even
without any consideration.

Thirdly, acts in which the rights of the community and those of
individuals are combined, while of the two the former preponderate
The night to punish a slanderer (gadhif) belongs, according to the
Hanafls, to this class by reason of the attack made on the honour of
‘one of its members, Since the right of God is dominant in qadhf, the
victim of this offence (i.e. the magdhif) cannot exonerate the offender
from punishment. The Shifi'ls have, however, held the contrary view
by saying that qadhf is an exclusive right of man and that the person
so defamed is entitled to exonerate the defamer. All acts that aim to
protect human life, intellect and property fall into this category. To
implement consultation (shird) in public affairs is one example, or the
right of the individual in respect of bay’al in electing the head of state.
According to the Maliki jurist al-Qarafl, all rights in Islam partake of
the right of God in the exclusive sense that there is no right whatso-
ever without the hagg Allah constituting a part thereof. Thus when
a person buys a house, he exercises his private right insofar as it
benefits him, but the transaction partakes of the right of God insofar
as the buyer is liable to pay the purchase price. The basic eriterion of

450 PRINCIPLES OF ISLAMIC JURISPRUDENCE

distinction between the nght of God and the right of man is whether
it can be exempted by the individual or not. Thus the vendor is able
to exonerate the purchaser from paying the price, and a wife is able
to exonerate her husband from paying her a dower (mah), but the
individual cannot exonerate anyone from obligatory prayers, or from
the payment of zakih.

Fourthly, there are matters in which public and private rights are
combined but where the latter preponderate. Retaliation (gisds) and
blood-money (diyal) of any kind, whet
fall into this category of rights. The community is entitled to punish
right of the heirs in retaliation and in diyah
for erroneous killing, and the right of the vietim in respect of diyah
for injuries, is preponderant in view of the grievance and loss that
they suffer asa result. The guardian (wall) of the deceased, in the case
of qisdy, is entitled to pardon the offender of to accept compensation
from him. But the state, which represents the community, is still
entitled co punish the offender through a ta'zir punishment even if
he is pardoned by the rela

het for life oF for gnevous injury

such vio

ons, but th

es of the deceased,

IIL.3 Legal Capacity (Ahliyyah)

Being the last of the three pillars (arkiin) of bulen shar'f this section is
exclusively concerned with the legal capacity of the mabiksim ‘alayh,
that is, the person to whom the fukm is addressed, and it looks into
the question of whether he is capable of understanding the demand
that is addressed to him and whether he comprehends the grounds of
his responsibility (takli). Since the possession of the mental faculty of
agi is the basic criterion of taklif, the law concems itself with the
circumstances that affect the sanity and capacity of the individual,
such as minority, insanity, duress, intoxication, interdiction (haj) and
mistake

Legal capacity is primarily divided into two types: the capacity 10
receive rights and obligations, referred to as ahliyyah al-unjab, and the
capacity for the active exercise of rights and obligations, which is
referred to as ahliyyah al-ada’, The former may be described as ‘recep-
tive legal capacity’, and the latter as “active legal capacity’.1#

Every person is endowed with legal capacity of one kind or another.
Receptive legal capacity is the abilicy of the individual to receive
rights and obligations on a limited scale, whereas active legal capacity
enables him to fulfil rights and discharge obligations, to effect valid acts
and transactions and to bear full responsibility towards God and his

Hukm: Shar't (Law or Value of Sharali) 451

fellow human beings. The criterion of the existence of receptive legal
capacity is life itself, whereas the criterion of active legal capacity is
maturity of intellect. Receptive legal capacity is vested in every human
being, competent or otherwise; an insane person, a foetus in the
womb, a minor and a foolish person (safth), whether in good health
or in illness ~ all possess legal capacity by virtue of their dignity as
human beings.”

Active legal capacity is only acquired upon attaining a certain level
of intellectual maturity and competence. Only a person who under-
stands his acts and his words is competent to conclude a contract,
discharge an obligation, or be punished for violating the law. Active
legal capacity, which is the basis of responsibility (1aklif) is founded
‘on the capacity of the mind to understand and to discern. But since
intelligence and discernment are hidden qualities that are not readily
apparent to the senses, the law has linked personal responsibility with
the attainment of the age of majority (bulligh), which is an obvious
phenomenon and can be established by factual evidence. However,
it is the intellectual faculty of the individual rather than age as such
which determines his legal capacity. ‘This is why an adult who is
insane, or an adult of any age who is asleep, is not held responsible
for his conduct, The principle here is clearly stated in the hadith
stating that: “The pen is lifted from three persons: the one who is
asleep until he wakes; the child until he attains puberty; and the insane
person until he regains sanity.’

all py «dais Gm pill ye DH yp lll
odin om OpH 69 eke o>
Receptive legal capacity may either be ‘deficient’ ot ‘complete’, The
receptive legal capacity of a child in the womb is incomplete in the
sense that it can only receive certain rights, such as inheritance and
bequest, but cannot bear any obligation toward others, Receptive
legal capacity is complete when a person can both have rights and bear
obligations. This type of legal capacity is acquired by every human
being as of the moment of birth. Dunng its mfancy and later stages
of childhood, a child is capable of discharging, albeit through his
guardian, certain obligations in respect, for example, of maintenance,
liability for loss (daman) and payment for services rendered to him,

‘As for the active legal capacity, three possible situations are envisaged.
Fint, a person may be totally lacking in active legal capacity, as in the

452 PRINCIPLES OF ISLAMIC JURISPRUDENCE

case of a child during infancy « Since

sane person of any

neither is endowed with the faculty of intellect

no legal consequences

accrue from their words and acts. When a child or a madman kills
someone or destroys the property of another person, they can only

be |

persons, They cannot be subjected, for example, to retaliation or to

Id liable with reference to their property, but not to their

any other type of f
Secondly, a person

Thus a discerning

ay be partially lacking in active legal capacity

at is, a child between

id (al-sabi al-mumayy

seven and fifteen years of age, or a mentally disabled person (math

who is neither insane nor totally lacking in intellect but whose intel-

lect is defective and weak, possess a legal capacity that is deficient
Both possess an active legal capacity which is incomplete and partial

The discerning child and the mentally disabled person are capable

only of concluding acts and transactions that are totally to their bene.

the

fit, such as accepting a gift or charity, even with emission

of their guardians, But if the gransaction in question is totally disad-
vantageous to them, such as giving a gift or making a will, or
pronouncing a divorce, these are not valid at all even if their guardian
happen to approve of them, :

benefit and loss, they are valid but only with the permission of the
guardian (walt), otherwise they are null and void.

for transactions which partake of both

Thirdly, active legal capacity is complete upon the attainment of
intellectual maturity. Hence every major person who has acquired
this ability is presumed to possess active legal capacity unless there is
evidence to show that he or she is deficient of intellect or insane

Persons who are fully competent may sometimes be put under
interdiction (hajf) with a view to protecting the rights of others. A
person may be interdicted by means of a judicial order which might
restrict his powers to conclude certain transactions. A debtor may
thus be interdicted so that the nghts of his creditors may be protected

A person in his death-illness (mara al-maut) is also deficient of legal
capacity, as severe illness and fear of imminent death affect the physi~
cal and mental faculties of the individual. But ordinary illness and other
conditions that do not impair the intellectual capacity of a person have
no bearing on his active legal capacity. This is partly why Imam Abo
Hanifah has differed with the majority of junsts by holding the view
that foolishness (safahah), indebtedness and carelessness (ghaflah) do not
affect the active legal capacity of a person. Abi Hanifah refuses to
accept these as proper grounds of interdiction, as in his view the bene-
fit of interdiction in these cases is far outweighed by its possible harm.”

Hiden Shar'i (Law or Va

Jue of Shariah) 453

NOTES
Ghazal, A 1. 41; Shawhiinl, leh, p. 6; KhallaG "Wim, p- tec
2. Muslim, Sebib, p. 16, hadtth 10. 34

3. Shas, Risdlah, p. se too Majah, Sinan, 1, 973, fadleh no. 4

sal p. 18; Abo el, Mubibith, ps

im, 9. 100; K

Rabin, Jun

ewe, p. 193. for the use of English terminology

Ibm, p- 107; Qlisim, Usa, p. 113,
7. Abt "Td, Mabihith, p. 6; Qasim, Up ¢ Rahim, Junyprudener, p. 197
&. Aba Zabeah, Usa, pp. 29-4: AbO ‘Td, Mabahith, p. 63

9 Ghaxatt, Mussa, «

4; Abo Td, Mabahith,
thn ka

Khalli€, “fim, p. 109; Qisien, 6

Hh. The Muti have b

view that 4 flexibibiry negates the whole

th element of choice altogether, But

concept of uagib, an in their view wdjib prec

what ch neradiction in

16 the wid into wih muwragqer an For devils see Ghazal, Mustay

3. Khudart, Up, p. yy; Kalla “thn,

3. Ghats, Mussayf, 1, 47; Kalla
Udi p42

p. 180; AbO Zahraly, Usd, p. 35; Khudar,

4 Chaxsl, Mista, 1, 4

1g OE Hasan, Jurap

6 Gharalt, Muctayft, 1, 4%; Aba Zahrah, Ul, p. 25
Chua, 5

Ghazi, Musa, 1, 43; Khali, thm, p13; Abdur Rahim, Jurgmudone, p19

1g, Abo Td Mabithich, p. 71; Khuda, Ul, p. 46

20. Taber, Mishka, 1, 6%, adlth 20. $4

21, Ghasil, Atusaay, 1, 4k; AbO

asim, Ui, p. 235; Badan, Usd, p.274; AbO "Ubayd, Mol

nz, pp. OE

af. 1, 43

Mabibidh jp. 72-4: QQisios, Usa, ya
ith, Xa.

Muslims, Sab, p. 473, hadith 0, 1775
Tayhagf. Suman al-Kube, Ih

24. Khali ‘fim, p. 1x3; AbG Zabrah, Ubi, p. 34 ADO “Id, Matai, pp. roll
26. Abo Zahra, Usdl p. 35; Qicim, Upal, pp. 2364

27. Ab@ Zahrah, Ui, p. 34

a8. Ws i, p. 274; AbD "Ubsyd, Mababith, p83; Ab Zahrah, Ui, p96
29. Tarte, Mishhat, 1, 330, hadith 0. 1047

30. Mid, I, 9, hath no. joc AbO "Td, MahIbith, pe

yi. Tabet, Milt, 1, R45, hadith om, 3773.

32. Qisim, Ut, p

3). AbO Dawod, Suman, 11, 1133. badth 0, 4
34. Ibid, 1, $96, hadlah 90. 2075,

ys. Abo ‘Td, M@obuhith, pp. Soma Khalaf) “Whe, po v6; Aylhnides, Muhammadon

ra,

Theories, p. 89.
36, Gus, Mista, 1, 42: Khali, “fm, 15; Abdur Rahim, Juriopmadence, p. 198

37. AbO Td, Mabaihith, pp. 84%
8. Ghasill, Mussagf, 1, 43

454 PRINCIPLES OF ISLAMIC JURISPRUDENCE
9. Shatil afaga, 1,14 PP arth
‘ m; p- 11%; Ab Td, M 92
48. Khalifa, p Aba ‘Td Mabthith, pp. 9-9; Qs
49. Khali Td, Mat

Aghnich Theones. pp. 8s AbO Td, Mahi ‘
haxall, Mustay®, 1, 62
Abo Zahrah, Uhdl, p, so; Aba ‘Id, Mablhith, pp. 166
Abo Zahra, Lal, pp. $12; Abo "Id, Mahi, pp. 09-4: Qusim, Lidl pp. ayt-®
4. Ghaadll, Musayft, 1, $9; ADO Zabrab, Ul, p. 54
Shawhant, Ind, a Zahe pp. sft, K y
6. Ghazi, Mustayf, 1, 96; Khallif, “Zn, p. 98: ADOT
Ghazalt, Mustay, I, 136
§. Shawkin, Inhid, p. 7
9. Gharall, Mussay®, 1
Abd Zaheah, Usdl p. $6; Khali, Mm, ye AbO." ay; Qasim

Uni, pp. 239"43

61, Khallaf, ‘tm, p. 128; Abo Zabrah, Usa, p. 24
wledge in this context means undervtanding the nature of

prohibition by the individual to the extent that he can act upon i. I

atti of the mind (jardlg). for Chis were uo be a requireme

would have been excluded from the meaning of muballa, which

Shawhat, Inhild, p11
63, Shawkant, Ind, p. 11; Kalla, “lim, p. s26l& AbQ Zahra, Ubdl, asof
64, Th Hanbal, Mund, 1, 108
65, Muslim, Sahth, p. 104, badlth no. 178
66, CE Abo Td, Mabihith, p. 139.

67. Abdur Rahitn, Jurtpridene, p. 203; Ab Zahrah, Usil, pp. ay

8, Khalaf, ‘Uhm, p. 128; Abo ‘Tc, Mahahich,p

69. Ab0 Sinnah, Niszanyyuh al-Hagg, p. 179: AbO ‘Id, Mabihish, pp. taut

0. Thid., p. 181

7. Aba Zaheah, Ua, p. agp; Ab@ "Td, Mabihith, p. 145

2. CE Abdur Rahim, fartypmdener, p 3

75. halla “ibm, p. 156

7h Tabriz, Mishka, If, 980, badnh 10

75: An idiot (math) is & person who is markedly defective of understanding. A foolish
and recklew person (iufth) m alo reganted ax being of defective legal capacity to a lesser

degree than the ma’ith, CC Abdur Rabim, Juripa

Ralls

Lim, p

140; Ab

P30
we Rabin, Jurlypmadener, p. 230.

CHAPTER EIGHTEEN

Conflict of Evidences

Conflict (ta’drud) occur when each of two evidences of equal strength
requires the opposite of the other. This means that if one of them
affirms something, the other negates it at the same time and place, A
conflict is thus not expected to arise between two evidences of
unequal strength as, in this case, the stronger of the two evidences will
naturally prevail. Thus a genuine conflict cannot arise between a
definitive (gaf'f) and a speculative (zannf) evidence
be a conflict between the nayy and ijmd’, or between ijmi and qiyds,
as some of these are stronger than others and will prevail over them
A conflict may, however, be encountered between two texts of the
Qur'an, oF between two rulings of hadith, or between a Qur'dnic
Ayah and a mutawsitir hadith, or between two non-mutawatir hadith, or
between cwo rulings of giyits, When there is a conflict between two
Qur'dnic dyat, or between one hadith and a pair of hadith, or between
one qiyils and a pair of analogies, it is a case of conflict between equals,
because strength does not consist in number, and consequently
single dyah, hadith or giyds is not necessarily set aside to make room
for the pair. The strength of two conflicting evidences is determined
by reference to the evidence itself or to the extrancous/additional
factors that might tip the balance in favour of the one over the other
For example, of the wo conflicting solitary or ahad hadith, the one
that is narrated by a fagih is considered to be stronger than that which
is narrated by a non-fagih.

Conflicts can only anise between two evidences that cannot be re-
conciled, in the sense that the subject-matter of one cannot be distin
guished from the other, nor can they be so distinguished in respect

nor could there

456 PRINCIPLES OF ISLAMIC JURISPRUDENCE

on. There are, for example, three different
ne-drinking, but since they were each

of the time of their applica
rulings in the Qur'an on w
revealed one after the other, and not simultaneously, there is conse-
arly, if investigation
reveals that each of two apparently conflicting rules can be applied to

ween them. Sim

quently no case of conflict b

the same issue under a different set of circumstances, then once again
there will be no conflict.

A genuine conflict can arise between two speculative’ (zannf)
evidences, but not between definitive (ga) proofs, In this way, all cases
the definitive rulings of the Qur'in and Sunnah
ne, conflict. Further:

of conflict betwee

are deemed to be instances of apparent, not gs
more, the ‘wlama’ have maintained the view that a genuine conflict
between two dyat or two ahddith, or between an dyah and a hadith,
does not arise; whenever a contlict is observed between these proof,
it is deemed to be only apparent and lacking in reality and substance
For the all-pervasive wisdom of the Lawgiver cannot countenance
the enactment of contradictory laws. It is the mujtahid who is deemed
unable to envision the purpose and intention of the Lawgiver in its
entirety, and who may therefore find cases of apparent conflict in the
divinely-revealed law. Only in cases of evident abrogation (naskh),
which are largely identified and determined by the Prophet himself,
could it be said that a genuine conflict had existed between the rulings
of divine revelation.* When there is a case of apparent conilict between
the rulings of the nusiis, one must try to discover the objective of the
Lawgiver and remove the conflict in the light of that objective. Indeed,
the rules of reconciliation and preference proceed on the assumption
that no genuine conflict can exist in the divine laws; hence it becomes
necessary to reconcile them or to prefer one over the other. This
would mean that cither both or at least one of the evidences at issue
can be retained and implemented. The mujtahid must therefore try to
reconcile them as far as possible, but if he reaches the conclusion that
they cannot be reconciled, then he must attempt to prefer one over
the other. If the attempt at reconciliation and preference fails, then
one must ascertain whether recourse can be had to abrogation, which
should be considered as the last resort. But when abrogation also falls
to offer a way out of the problem, then action must be suspended
altogether and both of the conflicting texts are abandoned.’

A case of conflict between the musiy and jima‘, or between two
rulings of the latter, is inconceivable for the obvious reason that no
ijma* can be concluded if it is contrary to the Qur'an and Sunnah in
the first place. Should a conflict arise between two analogies of proof

Conflict of Evidences 457

other than the nusiis and ijma’, and neither can be given preference
over the other and they cannot be reconciled, both must be suspended.
Abrogation in this case does not offer an alternative course of action
For abrogation is basically confined to the definitive rulings of the
Qur'an and Sunnak; iv ts irrelevant to ijmd and can be of little help
in cases of conflict between speculative evidences

Among the many instances of abrogation that the ‘wlama" have identi~
fied in the Qur'an, we may refer to only two; but in both cases a
closer analysis will show that the conflict at issue is not genuine, Our
first illustration is concerned with the precise duration of the waiting
period ("iddah) of widows, According to one of the two ayat on this
subject (al~Bagarah, 2:234), the widow must observe a ‘iddah of four
months and ten days following the death of her husband. This dyah
consists of a general provision that applies to every widow regardless
of whether she is pregnant or not at the time her husband dies. But
elsewhere in the Qur’in, there is another ruling concerning the ‘iddah
of pregnant women. This dyah (al~Taliq, 64:4) also conveys a general
ruling to the effect that the ‘iddah of pregnant women continues until
the delivery of the child. This ruling also applies to a pregnant widow,
who must wait until the termination of her pregnancy. Thus a preg-
nant woman whose husband dies and who gives birth to a child on
the same day would have completed her ‘iddah according to the second
of the two rulings, whereas she must, under the first ruling, still wait
for four months and ten days. The two texts thus appear to be in
conflict regarding the ‘iddah of a pregnant widow.

For a second illustration of an apparent conflict in the Qur'an, we
refer to the two texts conceming the validity of making a bequest to
‘one's relatives. This is explicitly permitted in sOra al-Bagarah (2:180)
which provides: “It is prescribed, when death approaches any of you, if
he leaves any assets, that he makes a bequest to his parents and relatives."

pA th de Bh Lp D5 Of Cayll pSdel pam bi}
Syall ow Ay

This ruling is deemed to have been abrogated by another text
(al-Nisi’, 4:11) which prescribes for each of the close relatives a share
in inheritance. This share is obviously determined, not by the will of
the testator, but by the will of God. The two texts thus appear to be in
conflict, but the conflict is not geauine as they can be reconciled, and
both can be implemented under different circumstances. The first of

458 PRINCIPLES OF ISLAMIC JURISPRUDENCE

the two rulings may, for example, be reserved for a situation where
the parents of the testator are barred from inheritance by a disability
such as difference of religion. Since the parents in this case would be
excluded from the scope of the second dyah, the conflict would conse-
quently not atise and there would be no case for abrogation. The same
approach can be taken regarding the foregoing dyat on the waiting
period of widows. Whereas the first of the two texts prescribed the
iddah of widows to be four months and ten days, the second enacted
the ‘iddah of pregnant women until the termination of pregnancy. The
two texts could be reconciled if widows were to observe whichever of
the two periods were the longer. If the pregnant widow delivers her
child before the expiry of four months and ten days following the death
of her husband, then she should wait until this period expires. But if
she waits four months and ten days and has still not delivered the child,
then her ‘iddah should continue until the birth of the child. Thus the
apparent conflict between the dyat under discussion is removed by
recourse to specification (takhsis): the second dydh in this case specifies
the general ruling of the first insofar as it concerns pregnant widows.*

The majority of madhahib, excluding the Hanafis, thus apply a four-
tiered procedure that begins with reconciliation and harmonising (al-
jam’ wa'l-tawflq), whereby both evidences are reconciled and retained.
The process that is applied here is known as differentiation (al-tanut’)
and it means reconciling the general with the specific, the absolute
with the qualified, and the literal with the metaphorical; or applying
methods of interpretation in such a way that each is applied in its
respective capacity and scope without any attempt to overrule either.
If reconciliation proves to be unfeasible, then recourse will be had to
preference (al-tanih), in which case, as already indicated, only one of
the two evidences is retained in preference to the other. Tayjth may
also be based on the value that is conveyed by one ot the other of
the evidences. In this way prohibition is preferred to permissibility
and the affirmative is preferred to the negative (or vice versa, according
to some ‘ulama’), Tarjth may also be based on extraneous evidence.
such as support that may be obtained for one of the evidences from
another source such as the Qur'in or ijma’. The third step is to resort
to abrogation (naskh) when tayjih peoves unfeasible. Naskh can only
apply when the conflicting evidences are equal in all respects, in
which case the latest in time abrogates the earlicr. And lastly, when all
three steps prove unfeasible, recourse may be had to suspension of
both evidences (tagaqu} al-dalilayn), which means that no action is
taken on either,

Conflict of Evidences 459

The Hanafis differ with the majority only on the order in which
the four steps are taken, The Hanafi order thus begins with naskh,
which is followed by reconciliation, then rayjth, and lastly suspension
of both evidences (although some Hanafis resort to tarjth before
reconciliation).’ Two of these steps, namely reconciliation and
preference, will be explained in further detail below

To reconcile two evidences, both of which are general (‘dmm), one
may distinguish the scope and subject-matter of their application
from one another by recourse to allegorical interpretation (1a).
Supposing there were two conflicting orders on saldh, one providing
that ‘salah is obligatory on my ummah’ and the other that ‘saldh is not
obligatory on my ummal’, to reconcile these (wo, one may assume
the first to have contemplated the adult and competent members of
the community and the second the minors and lunatics. If this is not
possible, then the two rulings may be distinguished in regard to the
times of their respective application, or they might be assumed to
have each envisaged a different set of circumstances. It is possible that
one or both of the two rulings are in the nature of a manifest (zahir)
provision and may thus be open to ta’wil. The 2dhir may be given an
interpretation other than that of its obvious meaning 40 as to avoid a
clash. This may be illustrated by the two apparently conflicting hadith
fon the subject of testimony. In the first of the two reports, the
Prophet is quoted to have addressed an audience as follows: ‘Should
Linform you who makes the best of witnesses?" To this, the audience
responded, "Yes, © Messenger of God’, and the Prophet said, ‘It 1s
one who gives testimony before he is requested to do s0."*

2 DB 6 Bh Spey Yk Ly Foyt ot pF pl I
Ly of Jo aot gl gil
However, according to another hadith, the Prophet said: "The best
generation is the one in which I live, then the generation after that

and then the next one, but after that there will be people who will
give testimony although they are not invited to give it”

© hake cui Go pba cad @ oA Oy All pe
Oplpteen Vy Opgts bd pate Of F

‘Thus the first hadith recommends something that the second seems to

460 PRINCIPLES OF ISLAMIC JURISPRUDENCE

discourage. The best form of testimony in the first hadith is unsolicited
testimony, whereas this is frowned upon in the second. Since neither
of the two hadith have specified a particular context, it is suggested
by way of ta’uil that the first hadith contemplates the rights of God
(hugiq Allah) whereas the second hadith contemplates the rights of
men (hugiig al-‘ibad). In this way, the apparent conflict between the
two texts is removed through an allegorical interpretation."

Allegorical interpretations may offer a solution even in cases where
two conflicting orders are both specific (iehdss). Recourse to ta'wil in
this case would once again serve the purpose of distinguishing the
subject-matter and scope of each of the two contheting orders. For
example, if Abmad issues two orders to his employee, one of which
tells the latter to ‘pay 1,000 dinars to Zayd’ and the other says ‘do not
pay 1,000 dinars to Zayd’, then if circumstances would so permit, the
fit order may be assumed to have contemplated normal relations
between Zayd and Abmad while the second had envisaged a hostile
situation between the ewo parties.”

In the event where one of the two conflicting rulings is general
(mm and the other specific (kha), they can be reconciled by excepe=
ang the latter trom the scope of the former through a procedure which
is known as tekhsiy al-'Amm, that is, ‘specifying a part of the general’.
This would once again mean that each of the two rulings applied
separately from one another to a different subject-matter, and both
can remain operative, Similarly, a text may be absolute in its wording
and appear to be in conflict with another text. They could be recon-
ciled and the conflict between them removed if one of them is $0
interpreted as to limit and qualify the absolute terms of the other,
Examples to illustrate these and other methods of interpretation can
be found in the separate chapter of this work devoted to the rules of
interpretation.

Should the attempt at reconciliation fail, the next step in resolving
a conflict, as stated above, is to give preference to one over the other.
Investigation may reveal that one of the two texts is supported by
stronger evidence, in which case we are basically dealing with two
texts of unequal strength. To prefer the one over the other in this
case may even amount to a form of clarification of explanation of one
by the other. Inequality in strength may be in content (matn) or in
proof of authenticity (riudyah). The former is concerned with the
chrity or otherwise of the language of the text, and the latter with
the historical reliability of the transmitters, Preference on the basis of
content would require that the literal is preferred to the metaphorical,

Conflict of Evidences 461

the clear (sari) to the implicit (kindyah), the explicit meaning (‘ibanth
al-nayi) to the allusive meaning (isharah al-nass), and the latter is pre-
ferred to the inferred meaning of the text (dalalah al-nass). Similarly,
words that convey greater clarity are to be preferred to those that are
less clear. Thus the mubkam (perspicuous) will be preferred to the
mufassar (unequivocal), the latter to the nagy (explicit) and the nass
to the zahir (manifest). Among unclear words, the khaft (obscure)
takes priority over the mushkeil (difficult), the later over the mujmal
{ambivalent) and the mujmal over the mutashabih (intricate), in an
order of priority which again has been stated elsewhere under the
rules of interpretation

Inequality in respect of transmission is mainly concerned with the
hadith; when, for example, the mutausltic is compared to the mash,
the former is preferred to the latter. Similarly the mashhdr takes priority
over the solitary (ddd) hadith, and the report of a transmitter who is
a fagih is preferred to the report of a transmitter who is not. Reports
by persons who are known to be retentive of memory take priority
over those transmitted by penons whose retentiveness is uncertain.
Ona similar note, hadith that are transmitted by leading Companions
are given preference to those transmitted by Companions who are
Jess well known for their prominence and continuity of contact with
the Prophet. Similarly, a hadith that is reported by a large number of
reporters is preferred to one reported by a smaller number; and one
reported by an upright person among the Sunnis is preferred to one
reported by a follower of a heterodox sect. And then, a report by one
who embraced Islam carlier is preferred to one compiled by a late-
comer to the faith. A hadith transmitted by an adult who also received
it while an adult, is preferred to one that was received during child-
hood, Any element of doubt, for instance concerning the name and
identity of a reporter, his retentiveness of memory and whether he
delivered the hadith during full or impaired mental capacity, will be
counted among the factors that determine the strength of a hadith. The
Milikis on the other hand prefer a hadith that is in agreement with
the practice of the people of Medina over one that is not, Similarly,
the report of a transmitter who is directly involved in an incident 1s
preferable to other reports. Thus the hadith that is reported by the
Prophet's wife MaymOnah to the effect that the Prophet married her
while both of them were halal, that is, outside the sacred state of ibram
for the hajj ceremonies, is preferred to that of Ibn ‘Abbis to the effect
that the Prophet married MaymOnah while he was in the sacred state
of ihram.’® In this way, a hadith that is supported by a mote reliable

462 PRINCIPLES OF ISLAMIC JURISPRUDENCE

chain of transmission is preferred to a hadith that is weak in its proof
of authenticity

At times the mujtahid may be confronted with a situation where
each of the two conilicting hadith is stronger in respect of some of
these factors but weaker in regard to others, in which case it is for
the mujtahid to assess and determine the overall strength or weakness
of the hadith according to his own ijtiudd.
greement that a hadith reported by
all the six imams of hadith, namely al-Bukharl, Muslim, Abt Dawad,
al-Nasi't, al-Tirmidht and Ibn Majah, takes priority over that which
might have been reported by only some and not all of these authori-
ties. Among hadith that are not reported by all the six authorities,
those that are reported by the first two are preferred, and if one of
the two conflicting hadith is reparted by al-Bukhisi and the other by
Muslim, the former is preferred to the latter, A hadith with a shorter
chain of transmitters is preferred to one with a longer chain of isnad,
This is because the one with the fewer number of transmitters is closer

The ‘wlama’ of hadith are in

to i source and more reliable. Similarly, reports of a transmitter who
knows Arabic well is preferable to those whose transmitter has poor
knowledge of Arabic. And then, a report by a transmitter who is not
involved in sectarian disputes is preferred to the one who is. The ‘lama’
of hadith also consider a hadith that was pronounced in Medina
preferable to the ones that were pronounced in Mecca, Also a report
that conveys its purpose directly is preferred to one that is indirect
An cloquent and well-constructed report is preferred to one which
is poorly structured; this is because the prophetic language is distin
guished for its clarity and eloquence.’

Another rule of preference, as noted above, is that affirmative
evidence takes priority over negative. This is because affirmation is
more indicative of superior knowledge. This may be illustrated by
the two rulings of hadith concerning the right of a slave-woman to a
divorce upon her release from slavery. It is reported that a slave woman
by the name of Barirah was owned by ‘A’ishah and was married to
another slave, Mughith, ‘A'ishah set her free, and she wanted to be
separated from Mughith, who was still a slave. The case was brought
to the attention of the Prophet, who gave Bartrah the choice either
to remain married to Mughith or be separated. But a second report
on the same subject informs us that Barirah’s husband was a free man
when she was emancipated. The two reports are thus conflicting with
regard to the status of the husband. But since it is known for certain
that Mughith was originally a slave, and there is no dispute about this,

Conflict of Evidences 463

the report that negates this original state is therefore ignored in view
of the general rule that affirmative evidence, that is, evidence which
affirms continuation of the original state takes priority over that which
negates it. The jurists have consequently held that when a slave woman
is set free while married to a slave, she will have the choice of repu-
diating or retaining the marriage. If the husband is a free man, she will
have no such choice according to Malik, Shifi't and the majority of
scholars. Abd Hanifah, however, maintains that she will have the
option even when her husband 1s a free man.

Among two conflicting hadith, the one that explains its own effec-
tive cause (‘illah) or occasion for its ruling is preferred to the one that
may contain the same ruling but is silent as to its ‘illah, A hadith is like~
wise preferred if it contains additional elements to the one that does
not. This is because including additional information implies superior
knowledge. ‘The addition may be in respect of words or the actual
ruling. Thus the hadith which tells us that the Prophet performed the

Id prayer with seven takbir (chat is, saying *Allalu akbar) is preferred
to the one telling us that that he uttered only four sakbir, In regard
to penalties, a hadith that omits a punishment is to be preferred to the
one that imposes one. This is in order to comply with the Qur'inic
declaration that ‘God does not intend to impose hardship upon people’
(al-Bagarah, 2:18)

posh Se ee Vs

This position resembles another rule of preference, which is that a
hadith which affirms the original principles of non-liability (al-bard'ah
al-ayliyyah) is preferred to the one that negates it. Note, for example,
the contlict between the two hadith, one of which declares: "Whoever
touches his sexual organ must refresh his ablution’

; .
Les yalb 0 SS Lm oy

and the other in which the Prophet is reported to have said concern-

ing the same that ‘it is only a part of your body’

wither daday VY} y* 0}

The latter hadith is preferred as it confirms original non-liability. More~
over, a hadith that is followed by the ‘ulama’ of Medina or the four lead~
ing Imams is preferred to one that has not commanded such following,”

464 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Another rule of preference, a8 already indicated, is that prohibition
takes priority over permissibility. Thus if there are two conflicting
rules of equal s
other permissive, the former will take priority over the latter. Having

ength on the same issue, one prohibitory and the

said this, however, it is possible th.
4 apply that which brings ease in preference to the
one that entails hardship.'*

If the attempt at reconciling two conflicting texts, or at preferring
.course may be had to abrogation.
This will necessitate an enquiry into the occasions of revelation (asbdb
al-nuzii), the relevant materials in the Sunnah, and the chronological
order between the two texts. If this also proves unfeasible, then action
must be suspended on both and the mujtshid may resort to inferior
evidences in order to determine the ruling on the issue. Thus if the
conflict happens to be between two rulings of the Qur'an, he may
depart from both and determine the matter with reference to the
Sunnah. Should there be a conflict between two rulings of the Sunnah,
then the mujtahid may refer, in descending order, to the fatuil of Com-
panions, and failing thar, the issue may be determined on grounds of
qiyas. However, if the mujtahid fails to find a ruling in any of the lower
categories of proofs, then he may resort to the general norms of Sharf'ah
that may be applicable to the case. These may be illustrated in the fol-
lowing example. A conflict is encountered between the two rulings of
Qur'in concerning the recitation of the portions of the Qur’n in con~
gregational prayer. The question that needs to be answered is whether
ina congregational salah, the congregation member, that is the mugtadt,
is requited to recite the sra al-Fatihah after the imam, or whether he
should remain silent. Two conflicting answers can be derived for this
question from the Qur'an. The first of the two dydt under discussion
provides: ‘And when the Qur'an is being read, listen to it attentively
and pay heed, so that you may receive mercy’ (al-A'raf, 7: 204),

the mujtahid may depart from

this rule and ins

one over the other, have both failed,

OF pS easily I yaaceld OTA ts 3 I5]y

It would appear that the mugtadi according to this dyah, should remain
silent when the imam recites the Qur’in. However, according to
another dyah, everyone, that is both the imam and the mugtadt, is
ordered to ‘read whatever is easy for you of the Qur’in' (al-Muzammil,
73:20),

Contlict of Evidences 465

TA ee Hs bly 3

Although neither of the two texts make a particular reference to salah,
they appear nevertheless to be in conflict with regard to the position
of the mugtadi, There is no additional evidence available to enable the
preference of one over the other; action is therefore suspended on
both and the issue is determined with reference to the Sunnah. It is
thus reported that on one occasion when the Prophet led the salah,
he asked the members of the congregation whether they recited the
Quin with him, and having heard their answers, he instructed them
not to recite the Qur'an behind the imam. But there still remains a
measure of inconsistency even in the hadith that are reported on this
point, which would explain why the jurists have also differed on it
Abd Hantfah, Malik, Ibn Hanbal and al-Shafi'l (according to his
former view which he revised later) have held thar it is not necessary
to recite al-Fitihah behind the imam in those prayers in which he
recites the Qur'in aloud, but that when the imam recites quietly, the
worshippers should recite al-Finbah. The later Hanafi jurists have,
however, held the view that it is not necessary for the worshipper to
recite the Qur'in behind the imam in cither case."

In the event where an issue cannot be determined by reference to
the Sunnah, the mujtahid may resort to the fatwa of a Companion, and
failing that, to qiyis. There is, for example, an apparent conflict between
the two reports concerning the way that the Prophet performed the
sala al-leusif, that is, prayer offered on the occasion of a solar eclipse
According to one of the reports, the Prophet offered two units (i.
two rak’ ahs) of salah, cach consisting of two bowings (rukil') and two
prostrations (sajdeh). But according to another report, each of the two
units contained four bowings and four prostrations. There is yet
another report that each of the two rak’alts contained three bowings
and three prostrations.'® The conflicting contents of these reports can
neither be reconciled, nor can one be given preference over the
other, Hence action is suspended on all and the matter is determined
‘on grounds of giyis. In this case, since salar al-kusiifis a variety of sah,
the normal rules of salah are applied to it. Since all obligatory salah,
without any variation, contains one bowing and two prostrations, this
is also by way of analogy extended to salar al-kusif”

In the event of a conflict occurring between two analogies, if they
cannot be reconciled with ene another, then one of them must be
given preference. The giyas whose effective cause (‘illal) is stated in

466 PRINCIPLES OF ISLAMIC JURISPRUDENCE

an explicit text is to be preferred to the one whose ‘illah has b
derive
fo

ah is
I-nass) takes priority over giyds
whose ‘illah is merely a proper or reasonable attribute derived through
inference and ijtihdd, When the ‘illah of giyds is explicitly stated in
the najs or when the result of giyds is upheld by ijma’, no conflict is
expected to arise. In the unlikely event where the mujtahid constructs
an analogy on the basis of an inferred effective cause (‘illah mustanbagah
while the ‘illah is explicitly stated in the nass, and he reaches a diver-
gent result, it is put down to his ignorance of the nafs, and the result
that he has reached will be ignored.
A conflict may well arise between two analogies that are both
unded on an inferred ‘illah, since this type of ‘illah involves a measure

of speculative reasor

through inference (jitinbaf). Similarly, a giyds wh

inded in an allusive text (isha

ing and jihad. Two mujtahidan may thus arrive

at different conclusi

with regard to the identification of an

This is, for example, the case regarding the ‘illah of compulsory
guardianship (utldyah al-ijb irl, Imam AbO
HaniGih considers the ‘illah of the guardian's power of ijbdr in
marriage to be the minority of the ward, whereas Imam al-Shifi'l
considers the ‘illah to be her virginity. This difference of ijihdd would

) in the marriage of a minor

in turn give rise to analogies whose results diverge from one another
depending on which of the two effective causes they are based on.
However, differences of this nature are tolerated and neither of the
cwo Imams have attempted to discourage diversity in ijtihad. In the
event where neither of the two conthicting analogies can be preferred
to the other, it is for the mujtahid to choose the one that seems good
to him even if there is no basis for such

preference other than his
own personal opinion
If none of the for

going methods can be applied in order to deter-
mine the ruling on an issue, then the mujtahid may take any of the
following three courses of action: to choose whichever of the «wo
evidences that seems good to him; abandon acting on both, which is
known as al-wakf, or tasagit al-dalilayn; and lastly, base his decision on
the original norms of the Shari'ah, This would be done on the assump-
tion that no specific indication could be found in the Sharf'ah on the
case. An example of this is to determine the ruling of the Shariah
that might have to be applied to a hermaphrodite whose gender,
whether male or female, cannot be determined and where neither
side could be preferred to the other. A recourse to the original norms
in this case means that the issue remains where it was in the first place
Since neither of the two possibilities can be preferred to the other,

Conflict of Evidences 467

action will be based on one side or the other, not because of any
evidence to warrant such a preference but as a precautionary measure
when the circumstances may indicate such a course of action. Thus
in some situations, in the distribution of shares in inheritance, for
example, the hermaphrodite will be presumed a male, while he will
be presumed a female in other situations as considerations of caution
and prevention of possible harm to him may suggest.”

In making such decisions, it is essential that the mujtahid does not
act against the general principles and spirit of the Shariah, When he
weighs the merits and demerits of conflicting evidences, he must
never lose sight of the basic objectives of the Lawgiver

NoTES

rin, Ul, p. 401; Khudarl, Ul p. 399; Aghnides, Muhammadan Theorie, p
2 Gharal, Musay 1h, +26 Kballs “tm, p. 236

§ Khalaf “tla, p. 239; Kbudart, Ul, p. 359

+ Abs Zaheah, Updh p. ags; Badrin, Ui p. 467: Khalaf, lm, p. 25

$ Zubaytt, Uni pp. a3

6 Manlimn, Sahih, p. 281, badivh ne. 10997; Bade, Upal ps. 46s

7. Toba, Misha,

A. Badian, Lidl, p. 406

9. CL Khudset, Un, p. 361

Jo. AbO DSw6d, Suman, 11, 486-7, hadith nos. 1899 and 1Aacy Ghat, MuutaA tl,
ak, Khud
11, AbO Z. a. p24
13. Abo Diwad, Suman, Il, 60r-2, badlh now 3233-7 and foomote 90. 1548) Haden,
Usa, p. 6s; Rhudaet, Uni p- 963

13. Hu, Wala, p. ayRt Zubayr, Usa, 1V, 219

ta. Khalaf ‘im, p33; Wadia, Uri p. 470

15. AbO Diw0d, Suman, Hh, 211, hadith mo. R25 and footnote no. 973) Dadran, Us,
PP. 4889

16 Abo Daw0d, Suman, Hl, 211, hadith 008. 1173-7

17, Badein, Ul p. 469.

18, Khalaf, Min, p. 232; Dadri, Cid, p. 476

19. Ab@ Zahra, Ui pp. 247-8; Khuda, Ua p, 360

20, Badri, Uiil pp 46070.

1695, hadith 90. 600

CHAPTER NINETEEN

Ijtihad (Personal Reasoning)

Ijtihad is the most important source of Islamic law next to the Qur'an
and the Sunnah. The main difference between ijtihdd and the re
sources of the Shariah lies in the fact that ijhid is a continuous process
of development whereas divine revelation and prophetic legislation
discontinued after the demise of the Prophet. In this sense, ijtihdd con
tinves to be the main instrument of interpreting the divine mesage
and relating it to the changing conditions of the Muslim community
in its aspirations to attain justice, salvation and truth.

Since ijtihad derives its validity from divine revelation, its propriety
is measured by its harmony with the Qur’n and the Sunnah. The
sources of Islamic law are therefore exentially monolithic, and the
commonly accepted division of the roots of jurisprudence into the
primary and secondary is somewhat formal rather than real. The
essential unity of the Sharf‘ah lies in the degree of harmony that is
achieved between revelation and reason. Ijtihad is the principal instru~
ment of maintaining this harmony. The various roots of Islamic lw
that feature next to the Que’in and the Sunnah are all manifestations
of jtihad, albeit with differences that are largely procedural in character
In this way, consensus of opinion, analogy, juristic preference, con-
siderations of public interest (maglabah), etc., are all interrelated not
only under the main heading of tihad, but through it to the Qur'an
and the Sunnah.” It is partly due to the formalistic character of these
sub-divisions that they are often found to be overlapping and con~
current, Thus a ruling of ijma* is often based on analogy, maylabah or
istihsan, and so on, despite its being designated as ima. Similarly, qiyae
and istihsan are closely related to one another in the sense that one of

caled

Jihad (Personal Reasoning) 469

the two main varieties of istihsdn consists of a selection between two
analogies on the same issue. The difference between maslahah and
istibsan is largely procedural, for they are essentially the same, the one
being reflective of the Maliki and the other of the Hanaft approach
to ijtihid. It is thus evident that all the non-revealed proofs of Shari“ah
are an embodiment of the single phenomenon of ijtihad. I present this
chapter as our last in the substantive themes on this work partly to
acknowledge that ijtihdd is the end result of ual al-figh and a cardinal
objective of studying chis discipline.

Being a derivation from the root word jahada, itihad literally means
striving, of self-exertion in any activity that entails a measure of hard-
ship. It would thus be in order to use jahada in respect of one who
carries a heavy load, but not so if he carries only a light weight
Juridically, however, ijtihad mainly consists not of physical, but of
intellectual exertion on the part of the jurist. Jjtihdd is defined as the
total expenditure of effort made by 3 jurist in order to infer, with a
degree of probability, the rules of Shart‘ah from their detailed evidence
in the sources.* Some ‘ulama’ have defined ijtihad as the application
by a jurist of all his faculties either in infernng the rales of Shart ah
from their sources, or in implementing such rules and applying them
to particular issues.” Jjtihad essentially consists of an inference (istinhaf)
that amounts to a probability (zann), thereby excluding the extrac~
tion of a ruling from a clear text, It also excludes the discovery of a
bukm by asking a leamed person or by consulting the relevant liter-
ature without the exercise of one’s own opinion and judgement
Thus a person who knows the rules of Shari'ah in detail but is unable
to exercise his judgement in the inference of the akkdm directly from
their sources is not a mujtahid, Ijtihad, in other words, consists of the
formulation of an opinion in regard to a hukm shart, The presence of
an element of speculation in ijtthad implies that the result arrived at
is probably correct, while the possibility of its being erroneous is not
excluded, Zann in this context is distinguished from ‘im, which implies
positive knowledge. Since the decisive rules of Shar ah impart positive
knowledge, they are excluded from the scope of ijtihad.* Also essential
to the meaning of ijtihad is the concept that the endeavour of the jurist
involves a total expenditure of effort in such a manner that the jurist
feels an inability vo exert himself further. If the mujtahid has failed
to discover the evidence which he was capable of discovering, his
opinion is void.’ And lastly, the definition of ijtihad is explicit on the
point that only a jurist (fagili) may practice ijtihad. This is explained
by the requirements of ijtihad, namely the qualifications that must be

470 PRINCIPLES OF ISLAMIC JURISPRUDENCE

fulfilled for attainment to the rank of mujtahid. When these require
ments are met, it is inevitable that the mujtahid must also be a.fagih
Thus the definition of ijtihad precludes self-exertion by a layman in
the inference of alm.’

The subject of ijtihdd must be a question of Shariah; more specifi~
cally, ijtihdd is concerned with the practical rules of Shari‘ah which
usually regulate the conduct of those to whom they apply (ic. the
mukallaf}, This would preclude from the scope of jjtihad purely
intellectual (‘aglf) and
perceptible to the senses (hissf) and do not involve the inference of a
uskm shar'¢ from the evidence present in the sources. Thus ijtihiid may
not be exercised in regard to such issues as the creation of the
universe, the existence of a Creator, the sending of prophets, and so
forth, because there is only one correct view in regard to these matters,
and anyone who differs from it is wrong. Similarly, one may not
exercise ijtihdd on matters such as the obligatory status of the pillars
of the faith, or the prohibition of murder, theft and adultery. For
these are evident truths of the Sharf‘ah which are determined in the
explicit statements of the texts

The detailed evidences found in the Qur'in and the Sunnah are
divided into four types, as follows: (1) evidence which is decisive
both in respect of authenticity and meaning; (2) evidence which is
authentic but speculative in meaning; (3) that which is of doubeful
authenticity, but definite in meaning; (4) evidence which is specula~
tive in respect both of authenticity and meaning. Jtihdd does not
apply to the first of the foregoing categories, such as the clear musi
ming the prohibition of adultery and theft. But ijtihdd can
validly operate in regard to any of the remaining three types of
evidence, as the following illustrations will show

An example of ijtihdd concerning evidence which is definite of proof
but speculative of meaning is the Qur'inic text in sOra al-Bagarah
(2:228); "The divorced women must observe three courses [gun] upon
themselves.

stomary (‘urff) iswes, or matters that are

IDES cemttl, nar a lilly

There is no doubt concerning the authenticity of this text, as the
Quen is authentic throughout. However, its meaning, in particular
the precise meaning of the word quni’, is open to speculation, Quai’
is a homonym meaning both ‘menstruation’ and "the clean periods
between menstruation’. Whereas Imam Abd Hanifah and Ibn Hanbal

Ijtihad (Personal Reasoning) 471

have adopted the former, Imam Shifi‘T and Malik have adopted the
latter meaning, and their respective ijtihad leads them to correspond-
ingly different results."

Itihad in regard to the third variety of evidence relates mainly to
hadith material, which may have a definitive meaning but whose
authenticity is open to doubt. To give an example, the hadith which
provides in regard to zakdh on camels that a goat is to be levied on
every five camels”

Le a IS gy
has a clear meaning, which is why the jurists are in agreement that
there is no zakih on less than five camels. But since this is a solitary
badith, its authenticity remains speculative. Jihad conceming it may
take the form of an investigation into the authenticity of its trans-
mission and the reliability of its narrators, matters on which the jurists
are not unanimous due to the different criteria that they apply. Should
the differences of ijtihdd and the rulings so arrived at conflict to the point
that no reliance can be placed on any, they are all to be abandoned
and no obligation may be established on their basis."

To give an example of ijtihdd concerning evidence that is specu-
Lative in both authenticity and meaning, we may refer to the hadith
that provides: "There is no saldh (1a saldta] without the recitation of
s0ra al-Fatibah.”

ASI AFL, Y dL Y

Being a solitary hadith, its authenticity is not proven with certainty.
Similarly, it is open to different interpretations in the sense that it
could mean either that saldh without the Fitihah is invalid, or that it
is merely incomplete, The Hanafls have held the latter, whereas the
‘Shifi'ts have adopted the former meaning of the hadith

I. The Value (Hukm) of Ijtihad

Legal theory in all its pares derives its validity from the revealed sources
It is partly for this reason and partly for the reason of man's duty to
worship his Creator that the practice of {jihad is a religious duty. The
‘wlama’ are in agreement that ijtihad is the collective obligation (fard
eafa’r) of all qualified jurists in the event where an issue arises but
no urgency is encountered regarding its ruling. The duty remains

472 PRINCIPLES OF ISLAMIC JURISPRUDENCE

unfulfilled until it is performed by at least one mujtahid. If a question
is addressed to two mujtahidiin, or to two judges for that matter, and
one of them exerts himself to formulate a response, the other is
absolved of his duty. But ijtis
or fard ‘aynt) of the qualified mujtahid in urgent cases, that is, when
there is fear thar the cause of justice or truth may be lost if ijtihdd
is not immediately attempted, This is particularly the case when no
other qualified person can be found to attempt ijtihdd. With regard
to the mujtakid himself, ijtihdd is wajib ‘ayni: he must practice ijtihad
in order to find the ruling for an issue that affects him personally. This
is so because imitation (taglid) is forbidden to a mijtahid who is
capable of deducing the hukm directly from the sources, Should there
be no urgency in ijtihdd, or in the event where other mujtahids are
available, then the duty remains as a fard kafa’l only. Furthermore,
ijtihad is recommended (mandi) in all cases where no particular issue
has been referred to the mujtahid, or when it is attempted in the
absence of an issue by way of theoretical construction at the initiative
of the jurist himself, And finally, ijtihdd is forbidden (hardm) when it
contradicts the decisive rules of the Qur'ln, the Sunnah and a definite
ifmit.”*

The ‘wlama’ of usil are in agreement that the mujtahid is bound by
the result of his own ijtiluld. Once he has deduced the nuling on a
particular issue, and it is founded in his true conviction and belief, he
may not imitate other mujtahidin on that matter regardless of whether
they agree with him or otherwise; for the mujtahid, the conclusion
that he reaches is tantamount to a divine command that he must
observe, It is therefore unlawful for him to abandon it or to follow
anyone else in respect of it. But if he has not rendered his own ijtihid
on an issue that is not urgent, and he has time to investigate, then,
according to some ‘wlama’, he may imitate other mujtahidiin, However,
the preferred view is that he must avoid taglid, even of one who might
be more learned than him, Only a ‘dmmt (ignorant person) who is
incapable of ijtihdd is allowed to follow the opinion of others.” This
is considered to be the purport of the Qur’inic command, addressed
to all those who have the capacity and knowledge, to exert them-
selves in the cause of justice and truth (al-Hashr, $9:2). Elsewhere we
read in the Qur'an (Mubammad, 47:24): “Will they not meditate on
the Qur'an, or do they have locks on their hearts?’

BI gh de of OT A Oy py Dil

becomes a personal obligation (wijib

ul

Ijtihad (Personal Reasoning) 473

The same conclusion is sustained by another Qur’snic passage, in
stra al-Nisi’ (4:59) where the text requires the judgement of all
disputes to be referred to God and to His Messenger. These and many
similar dyat in the Qur'an lend support to the conclusion that it is the
duty of the leamed to study and investigate the Qur’in and the teach-
ings of the Prophet. The correct meaning of the manifest directives
(zawahir) of the Qur'in is also understood from the practice of the
Companions, who used to investigate matters, and each would formu-
late his own ijtihid, in which case they would not imitate anyone
else,'* The mujtahid is thus the authority (hnujiah) for himself. His is the
duty to provide guidance to those who do not know, but he himself
‘must remain in close contact with the sources. This is also the purport
of another Quranic dyah which enjoins those who do not powess
knowledge: "Then ask those who have knowledge [ah al-dhiky) if you
yourselves do not know’ (al-Nabl, 16: 43),

Oyelad Y pF Of SI Jal i Lu
Thus only those who do not know may seck guidance from others,
not those who have the ability and knowledge to deduce the correct
answer themselves. The ahi al-dhikr in this dyah refers to the ‘ulama’,
regardless of whether they actually know the correct ruling of an
issue or not, provided they have the capacity to investigate and find
out,"

When a mujtahid exerts himself and derives the naling on a particu-
lar issue on the basis of probability, but after a period of time changes
his opinion on the same issue, he may set aside or change his initial
ruling if this will only affect him personally. Por example, when he
enters a contract of marrage with a woman without the consent of her
guardian (wal) and later changes his opinion on the validity of such
a marriage, be must annul the mikah, Bur if his ijtihdd affects others,
when, for example, he acts as a judge and issues a decision on the basis
of his own ijtihdd and then changes his views, he may not, according
to the majority of ‘ulama’, set aside his earlier de For if one
ruling of ijrihdd could be set aside by another, then the latter must be
equally subject to reversal, and this would lead to uncertainty and loss
of credibility in the ahkam.,"* It is reported that “Umar ibn al-Khatyab
adjudicated a case, known as Hajariyyah, in which a deceased woman,
was survived by her husband, mother, two consanguine and cwo
uterine brothers. “Umar ibn al-Khawtab entitled all the brothers to a
share in one-third of the estate, but was told by one of the parties

474 PRINCIPLES OF ISLAMIC JURISPRUDENCE

that the previous year, he (Umar) had not entitled all the brothers
to share the portion of one-third. To this the caliph replied, "That
was my decision then, but today I have decided it differently.” Thus
the Caliph "Umar upheld both his decisions and did not allow his larrer
decision to affect the validity of the form:

of one judge may not be set aside by another merely because the latter
happens to have a different opinion on the matter. It is reported that
dicated by ‘Ali and Zayd informed ‘Umar
cision, to which the latter replied that he

er.'? Similarly, the decision

aman whose case was adj
ibn al-Khattab of their d
would have ruled differently if he were the judge. To this the man
4, ‘Then why don't you, as you are the Caliph?" ‘Umar ibn al-
Khartib replied that had it been a matter of applying the Qur’in or

repli
the Sunnah, he would have intervened, but since the decision was
based in ra’y, they were all equal in this respect." Since in matters of
juristic opinion no-one can be certain that a particular view is wrong,

the view that has already been embodied in a judicial decree has a
greater claim to validity than the opposite view. The position is,
however, different if the initial decision is found to be

the law,

pn violation of

n which case it must be set aside. This is the purport of the
ruling of “Umar ibn al-Khattib, which he conveyed in his well-known
letter to AbO Masi al-Ash‘ari as follor
that you have rendered yesterday, and then upon reconsideration
you find that it was wrong, deter you from returning to truth. For
truth is timeless and returning to truth is better than continuing in
falsehood,

And let not a judge

ent

Il, The Proof (Hujjiyyah) of Ijtihad

Iuihad is validated by the Qur'an, the Sunnah and the dictates of reason
(Cagl). Of the first two, the Sunnah is more specific in validating ijtihid.
The hadith of Mu‘tdh ibn Jabal,” as al-Ghazili points out, provides
a clear authority for ijtihdd. The same author adds thar the claim that
this hadith is mursal (i.e. a hadith whose chain of narration is broken
at the point when the name of the Companion who heard it from
the Prophet is not mentioned) is of no account, for the ummah has
accepted it and has consistently relied on it; no further dispute about
its authenticity is therefore warranted." According to another hadith,
“When a judge exercises ijtihdd and gives a right judgement, he will
have two rewards, but if he errs in his judgement, he will still have
earned one reward."

[jtihad (Personal Re

soning) 475

© Ob pl ald Lbs agin 15] SLL
wel alo Unt sport oly

This hadith implies that regardless of its results, ijtihdd never partakes
of sin, When the necessary requirements of ijtihad are present, the result
is always meritorious and never blameworthy.” In another hadith, the
Prophet is reported to have said: ‘Strive and endeavour [ijtahida], for
everyone is ordained to accomplish that which he is created for."

wad gle UL Ae JS I pig

There is also the had
servants, He cnables him to acquire knowledge [tafagquh] in religion."

which reads: “When God favours one of His

ell agddy Lp 4 dil oy oy

The ‘lama’ of upiil have also quoted in this connection two other
hadith, one of which makes the pursuit of knowledge an obligation
of every Muslim, man or woman:

Radney lame JS gle Aaya alle

and the other declares the “ulamd to be the successors of the Prophets.”
wel J Tyg cll!

The relevance of the last two hadith to ijtihdd is borne out by the fact
that ijtihdd is the main instrument of creativity and knowledge in Islam.

The numerous Qur'inic dyat that relate to ijtihad are all in the
nature af probabilities (awihir), All the Qur’inic dyat that the “wlama’
have quoted in support of giyds can also be quoted in support of
ihihad. In addition, we read, in sOra al-Tawbah (9:12): "Let a contin=
gent from each division of them devote themselves to the study of
religion and warn their people.’

\ ppd) aie pg WD JS cy Ai Yb
red lyiss palo

476 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Devotion to the study of religion is the essence of itihdd, which
shou ature of the life of the community. Although
the pursuit of knowledge is a duty on every individual, attaining
tafagquh, oF ‘erudition in religions disciplines’, is necessary for those who
guide the community and warn them against deviation and ignorance.
lar note, we read in sOra al-‘Ankabar (29:69): ‘And those
| in Our cause, We will certainly guide

id be a continuous

On a si
who strive (wa'l-ladhina jah
them in Our paths.

Lele peptgs Led Iplale cally

It is interesting that in this dyah the word subuland (‘Our paths
occurs in the plural form, which might suggest that there are numer-
paths toward the truth, which are all open to those who exert
themselves in its pursuit, Furthermore, we read in sOra al-Nist (4:59)
If you dispute over something, then refer it to God and to the
Messenger

Jem dy ah Sh ose A eget Q pies Ob

The implementation of this dyah would necessitate knowledge of the
Qur'in, the Sunnah and the objectives (magdsid) of the Lawgiver on
asis disputed matters could be adjudicated and resolved.

The Companions practised ijtihdd, and their consensus is claimed in
support of it.” In their search for solutions to disputed matters, they
would base their judgement on the Qur'dn and the Sunnah, but if
they failed to find the necessary guidance therein, they would resort
to ijtihad, The fact that the Companions resorted to ijtihid in the
absence of a nays is established by continuous testimony (fauaitur).**
The rational argument in support of ijtihdd is to be sought in the fact
that while the nusiy of Shar oh are limited, new experiences in the
life of the community continue to give rise to new problems. It is
therefore imperative for the learned members of the community to
attempt to find solutions to such problems through ijtihad.””

whose

ILI. The Conditions (Shunif) of Ijrihad

A mujtahid must be a Mustim and a competent person of sound mind
who has attained a level of intellectual competence that enables him
to form an independent judgement. In his capacity as a successor to
the Prophet, the mujtahéd performs a religious duty, and his verdict is

Jjtihad (Personal Reasoning) 477

2 proof (hujjah) to those who follow him; he must therefore be a
Muslim and be knowledgeable in the various disciplines of religious
learning. A person who fails to meet one or more of the requirements
of ijtihad is disqualified and may not exercise ijtihdd. The requirements
that are discussed below relate to ijtihad in its unrestricted form, often
referred to as ijtihad fi'l-shar’, as opposed to those varieties of ijtihad
that are confined to a particular school, of to particular issues within
the confines of a given madhhab,

The earliest complete account of the qualifications of a mujtahid is
given in Abu’l-Husayn al-Basti's al-Mu'tamad ft Usil al-Figh. The broad
outline of al-Basti’s exposition was later accepted, with minor changes,
by al-Shirizi (d. 1083 ap), al-Ghazall and al~Amidi (d, 1234 AD). This
does not mean that the requirements of ijtihd received no attention
from the ‘ulama’ who lived before al-Basri, Bur it was from then
onwards that they were consistently adopted by the ‘ulama’ of ujiil
and became a standard feature of ijtihdd.” These requirements are as
follows

(1) A knowledge of Arabic to the extent that enables the scholar
to enjoy a correct understanding of the Qur'an and the Sunnah, A
complete command of and erudition in Arabic is not a requirement,
bur the mujtahid must know the nuances of the language and be able
to comprehend the sources accurately and deduce the abkam from
them with a high level of competence." Al-Shiribl, however, lays
greater emphasis on the knowledge of Arabic: a person who possesses
only an average knowledge of Arabic cannot aim at the highest level
of attainment in ijtihdd. The language of the Qur'in and the Sunnah
is the key to their comprehension and the ijtihid of anyone who is
deficient in ¢his respect is unacceptable, The same author adds:
since the opinion of the mujtahid is a proof (hujjah) for a layman, this
degree of authority necessitates direct access to the sources and full
competence in Arabic.”

(2) The mujtahid must also be knowledgeable in the Qur'an and
the Surmah, the Meccan and the Medinan contents of the Qur'an,
the occasions of its revelation (ashab alsnuzal) and the incidences of
abrogation therein. More specifically, he must have a full grasp of
the legal contents, or the dyat al-ahkiim, but not necessarily of the
narratives and parables of the Qur'an and its passages relating to the
hereafter." According to some ‘ulama’, including al-Ghazali, Tbe al-
‘Arabi and AbO Bakr al-Razi, the legal dyar of the Qur'an that the
mujtahid must know amount to about five hundred, Al-Shawkant,
however, observes that a specification of this kind cannot be definitive,

478 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Iitihad (Personal Reasoning) 479

For a mujtahid may infer a legal rule from the narratives and parables
that are found in the Qur'in, The knowledge of dyat al-ablim
includes knowledge of the related commentaries (tafdsir) with special
reference to the Sunnah and the views of the Companions. Al-
Qurtubt's Taféir al-Quriubl and the Alskdm al-Qur’an of Abo Bakr ‘Ali
al-Jaysig are particularly recommended. ”*

(3) Next, the mujfalid must possess an adequate knowledge of the
Sunnah, especially that part of it that relates to the subject of his ijtihad,
the divisibility (tajzi’ah) of ijtthad

This is the view of those who admit
(for which see below), but if ijtihad is deemed to be indivisible, then the
mujtahid must be knowledgeable of the Sunnah as a whole, especially
with reference to the ahkam texts, often referred to as ahddivh al-ablean,
He must know the incidences of abrogation in the Sunnah, the general
and the specific, (‘dmm and khiys), the absolute and the qualified (muglag
and mugayyad), and the reliability or otherwise of the narrators of
hadith. It is not necessary to commit to memory the abddith al-alledm
or the names of their narrators, but he must know where to find the
hadith when he needs to refer to them, and be able to distinguish the
reliable from the weak and the authentic from the spurious.”* Imam
Ghazalt points out that an adequate familiarity with the ahadith al-
abkiim, such as those found in Sunan Aba Dawtid, Sunan al-Bayhagi, or
the Musnad of Ibn Hanbal, would suffice. According to another view,
which is attributed to Abmad ibn Hanbal, che ahddith al-abledm are
likely to number in the region of 1,200.” The legal hadith have been
collected in various works, including the one by Ibn Dagiq al-Id
(d. 702 an) which included 1,471 hadith

(4) The mujtahid must also know the substance of the fun’ works
and the points on which there is an jjmi’. He should be able to verify
the consensus of the Companions, the Successors and the leading
Imams and mujtahidin of che past so that he is guarded against the
possibility of isuing an opinion contrary to such an ijma’. It would be
rare, al-Shawkint observes, for anyone who has attained the rank of
2 mujtahid not to be aware of the issues on which there is conclusive
jimi’. By implication, the mujtahid must also be aware of the opposing
views, as it is said, “The most learned of people is also one who is
most knowledgeable of the differences among people’)?

(5) In their expositions of the qualifications of a mujtahid, the ‘wlama’
of usil place special emphasis on the knowledge of giyds. The Qur'an
and the Sunnah, on the whole, do not completely specify the law as
it might be stated in a juristic manual, but contain general rulings and
indications as to the causes of such rulings. The mujtahid is thus

enabled to have recourse to analogical deduction in order to discover
the ruling for an unprecedented case. An adequate knowledge of the
rules and procedures of iyi is thus essential for the muytahid. Imam
Shafi'T has gone so far as to equate ijtihdd with qiyas. Analogy, in
other words, is the main bastion of ijtihid, even if the two are not
identical. Al-Ghazali has observed that notwithstanding the claim by
some ‘ulama’ that qiyds and ijtihdd are identical and coextensive, itihdd
is wider than giyas as it comprises methods of reasoning other than
analogy."

(6) Furthermore, the mujtahid should know the objectives (magdsid)
of the Shariah, which consist of the masilih (considerations of public
interest). The most important masdlils are those that the Lawgiver
has Himself identified and which must be given priority over others
Thus the protection of the ‘Five Principles’, namely of life, religion,
intellect, lineage and property, are the recognised objectives of the
Lawgiver. These are the essentials (daririyydl) of the magdlih and as
such they are distinguished from the complementary (bdjlyyat) and
the embellishments (tahstniyyd), The migjtahid must also know the
gencral maxims of figh such as the removal of hardship (raf al-haraj),
that certainty must prevail over doubt, and other such principles that
are designed to prevent rigidity in the abkdm. He must be able to
distinguish the genuine masdlih from those that might be inspired by
whimsical desires, and be able to achieve a correct balance between
values.”

Al-Shatibi summarises all the foregoing requirements of ijtshdd under
two main headings, one of which is the adequate grasp of the objec
tives of the Sharf ah, while the otber is the knowledge of the sources
and methods of deduction, The first of these is fundamental, and the
second serves as an instrument of achieving the first.”

It is further suggested in this connection that the mujtahid must be
capable of distinguishing strength and weakness in reasoning and
evidence. This requirement has prompted some ‘ulama’ to say that the
mujtahid should have a knowledge of logic (manjiq). But this is not
strictly a requirement. For logic as.a discipline had not even developed
during the time of the Companions, but this did not detract from
their ability to practice ijtihid.*"

‘And finally, the mujtahid must be an upright (‘adid) person who
refrains from committing sins and whose judgement the people can
trust. His sincerity must be beyond question and untainted with self
seeking interests. For ijiihdd is a sacred trust, and anyone who is
tainted with heresy and selindulgence is unworthy of it.4? These are

480 PRINCIPLES OF ISLAMIC JURISPRUDENCE

[jtihdd (Personal Reasoning) 481

the conditions of independent ijtihdd, but a mujtahid on particular issues
need only know all the relevant information conceming those issues
and may, at least according to those who admit the ‘divisibility’ of
ijtihad, practice ijtihad in respect of them. His lack of knowledge in
matters unrelated to the issues concemed does not prejudice his
competence for ijhad.*

Some observers have suggested that the practice of ijtihdd was
abandoned partly because the qualifications required for its practice
were made "so immaculate and rigorous and were set so high thar
they were humanly impossible of fulfilment’. This is, however, an
implausible supposition that has been advanced mainly by the pr
nents of taglid with a view to discouraging the practice of ijtihdd. As
for the actual conditions, Abdur Rahim (with many others) has aptly
observed that ‘the qualifications required of a mujtahid would seem
to be extremely moderate, and there can be no warrant for supposing
that men of the present day are unfitted to acquire such qualifica
tions’."? There is little evidence to prove that fulfilling the necessary
conditions of ijtihid was beyond the reach of the ‘wlama’ of later
periods. On the contrary, as one observer has pointed out, ‘the total
knowledge required on the part of the jurist enabled many to under~
take ijtihdd in one area of the law or another’. Their task was further
facilitated by the legal theory, in particular the hadith that absolves
the mujtahid who commits an error from the charge of sin, and even
entitles him to a spiritual reward, Furthermore, the recognition in
the legal theory of the divisibility of ijtihdd, as we shall presently
discuss, enabled the specialist in particular areas of the Shari'ah to
practice ijtihdd even if he was not equally knowledgeable in all its
other disciplines,

IV. The Divisibility of tihad

The question to be discussed here is whether a person who is leamed
‘on a particular subject is qualified to practice ijtihdd in that area, or
whether he is required to qualify as a full mujtahid first in order to be
able to carry out {jihad at all. The majority of ‘wlama’ have held the
view that once a person has fulfilled the necessary conditions of ijtihad,
he is qualified to practice it in all areas of the Shar‘ah. According to
this view, the intellectual ability and competence of a mujtahid cannot
be divided into compartments, fjtihad, in other words, is indivisible,
and we ¢annot say that a person is a mujtahid in the area of matri-
monial law and an imitator (mugallid) in regard to devotional matters

(ibadat) or vice-versa. ‘To say this would be tantamount to a contra-
diction in terms, as ijtihad and faglid cannot be combined in one and
the same person.” The majority view is based on the analysis that
ijtihad, for the most part, consists of formulating an opinion, or zann,
concerning a rule of the Shariah. A zann of this type occurs only
to a fully qualified mujtahid who has attained the necessary level of
intellectual competence, It is further argued that all the branches of
the Shar ah are interrelated, and ignorance in one may lead to an
error or misjudgement in another. The majority view is further
supported by the argument that once a person has attained the rank
of mujtahid, he is no longer permitted to follow others in matters
where he can exercise ijtihdd himself” Among the majority there
are some ‘wlama’ who have allowed an exception to the indivisibility
of ijtihad. This is the area of inheritance, which is considered to be
self-contained as a discipline of Shariah law and independent of
the knowledge of the other branches. Hence a jurist who is only
knowledgeable in this field may practice ijrihdd in isolation from the
other branches of figh.””

Some Maliki, Hlanball and Zahir “wlama" have, however, held the
view that ijtihad is divisible. Hence when a person is leamed in a
particular area of the Shariah, he may practice ijtihdd in that area only.
This will in no way violate any of the accepted principles of ijtihad.
There is similarly no objection, according to this view, to the possi-
bility of a person being both a mujtakid and a mugallid at the same
time. Thus a mujtahid may confine the scope of his #jtihad to the area
of his specialisation. ‘This has, in fact, been the case with many of the
prominent imams, who have, on occasions, admitted their lack of
knowledge in regard to particular issues. Imam Malik is said to have
admitted in regard to thirty-six issues at least that he did not know
the right answer. In spite of this, there is no doubt concerning Malik's
competence as a fully-fledged mujtahid.””

The view that ijtihad is divisible is supported by a number of
prominent ‘wlama’, including Abu'l-Husayn al-Bayrt, al-Ghazai, Ton
al-Humim, fbn Taymiyyab, his disciple Ibn al-Qayyim and al-
Shawkini, Al-Ghazall thus observes that a person may be particularly
learned in giyas and be able to practice ijtihad in the form of analogy
even if he is not an expert on hadith. According to the proponents
of this view, if knowledge ofall the disciplines of Shar ah were to be
a requirement, most ‘ulama’ would fail to meet it and it would impose
a heavy restriction on ijtihad, Al-Shawkint, Badrin and al-Kassib
have all observed that this is the preferable of the two views." One

482 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Ijtihad (Personal Reasoning) 483

might add here that in modern times, in view of the sheer bulk of
information and the more rapid pace of its growth, specialisation in any
major area of knowledge would seem to hold the key to originality
and creative ijtihd. The divisibility of ijtihdd would thus seem to be
in greater harmony with the conditions of research in modern times
By way of a postscript, one might also remark that the classification
of mujtahids into various ranks, such as mujtahids in a. particular
school or on particular issues, takes for granted the idea that ijtihdd is

divisible.

V. Procedure of Ijrthad

Since ijtihdd occurs in a variety of forms, such as qiys, istihsin, maglabah
‘mursalah, and s0 on, each of these is regulated by its own rules. There
is, in other words, no uniform procedure for jtihad as such. The ‘wlamma’
have nevertheless suggested that in practising ijtihdd, the jurist must
first of all look at the musts of the Qur'an and the hadith, which must
be given prionty over all other evidences. Should there be no nary on
the matter, then he may resort to the manifest text (zihir) of the Qur'in
and hadith and interpret it while applying the nules pertaining to the
general (‘dmm) and specific (ktdss), the absolute and the qualified, and
so forth, as the case may be, Should there be no manifest text on the
subject in the Qur'in and the verbal Sunnah, the mujlahid may resort
to the actual (ffl) and tacitly approved (tagrirf) Sunnah. Failing this,
he must find out if there is a ruling of jm’ or giyds available on the
problem in the works of the renowned jurists. In the absence of any
guidance in these works, he may attempt an original ijtihdd along the
lines of qiyds. This would entail a recourse to the Qur’sn, the hadith
or jm for a precedent that has an ‘illah identical to that of the far
(i.e. the case for which a solution is required), When this is identified,
he is to apply the principles of qiyds in order to deduce the necessary
ruling, In the absence of a textual basis on which an analogy can be
founded, the mujtakid may resort to any of the recognised methods
cof jtihad such as istibsiin, maslabah mursalah, istishdb, etc,, and derive a
solution while applying the rules that ensure the proper implemen-
tation of these doctrines.

The foregoing procedure has essentially been formulated by al-
Shifi'i, who is noted to have observed the following. When an
incident occurs, the mujtahid must first check the musiy of the Qur'in,
but if he finds none, he must refer to mutawstir hadith and then to
solitary hadith, If the necessary guidance is still not forthcoming,

he should postpone recourse to giyas until he has looked into the
munifest (zahir) text of the Qur'sn. If he finds a manifest text that is
general, he will need to find out if it can be specified by means of
hadith or giyas. But if he finds nothing that will specify the manifest
text, he may apply the latter as it stands. Should he fall to find a mani
fest text in the Qur'an or the Sunnah, he must look into the madhahib.
Ifhe finds a consensus among them, he applies it, otherwise he resorts
to giyas, but in doing so, he must pay more attention to the general
principles of the Sharf'ah than to its subsidiary detail. If he does not
find this possible, and all else fails, then he may apply the principle of
original absence of liability (al-bard'ah al-asliyyah). All this must be in
full cognisance of the rules that apply to the conflict of evidences (al-
ta'rud bayn al-adillah), which means that the mujtahid should know
the methods deployed in reconciling such conflicts, or even elimi-
nating one in favour of the other, should this prove to be necessary
The ruling so arrived at may be that the matter is obligatory (wijib),
forbidden (harim), reprehensible (makrih) or recommended (mandi)?

From the viewpoint of its procedure, ijtthid may occur in any of the
following four varieties. Firstly, there is the form of a juridical analogy
(giyas) which is founded on an effective cause (‘illal), The second
variety of ijtihad consists of a probability (zann) without the presence of
any “illah, such as practising ijuihad in regard to ascertaining the time
of salah or the direction of the qiblah, The third type of ijuhad consists
of the interpretation of the source materials and the deduction of alikam
from existing evidence. This type of ijtihdd is called ijtihad baydnt, ot
‘explanatory ijtihdd’, which takes priority over "analogical ijthad’, or
ijtihad qiyds. The fourth variery of ijtihad, referred to as ijtihad éstislaht,
is based on maslabah and secks to deduce the abliim in pursuance of
the spirit and purpose of the Sharfah, which may take the form of
istislah, juristic preference (istihsdn), the obstruction of means (sadd al-
dhard'®), of some other technique. Imam Shafi'l accepts only the first
type, namely analogical ijtihad, but for the majority of ‘ulama’, ijtihiid
is not confined to giyds and may take the form of any of the fore-
going varieties.

VI. The Jjtihad of the Prophet and his Companions

The question to be discussed here is whether all the rulings of the
Prophet should be regarded as having been divinely inspired or
whether they also partake of ijtihad. The ‘wlama’ are generally in
agreement that the Prophet practised ijtihid in temporal and military

484 PRINCIPLES OF ISLAMIC JURISPRUDENCE

[itihad (Personal Reasoning) 485

affairs, but they have differed as to whether his rulings in shar't matters
could properly fall under the rubric of ijtihdd. According to the Ash‘arts,
the Mu'tazilah, Ibn Hazm al-Zshiri and some Hanbalt and Shafi"
lama’, the Qur'an provides clear evidence that every speech of the
Prophet partakes of wahy. A specific reference is thus made to sira
al-Najm (53:3) which provides: ‘He says nothing of his own desire,
it is nothing other than revelation [waby] sent down to him.”

Sr a VOL Sybl oe Gh by

This dyah is quite categorical on the point that the Prophet is guided
by divine revelation and that all his utterances are to be seen in this
light, This would mean that all the rulings of the Prophet consist of
divine revelation and that none would occur in the form of ijtihdd.*

The majonity of ‘wlama” have, however, held that the Prophet in
fact practised ijtihad just as he was allowed to do so. This, it is said,
is borne out by the numerous dyar of the Qur’in where the Prophet
is invited, along with the rest of the believers, to meditate on the Qur’in
and to study and think about the created world, As for the dyai in
sOra al-Najm quoted above, the majority of ‘ulamd" have held that the
reference here is to the Qur’in itself, and not to every word that the
Prophet uttered. That this is so is borne out by the use of the pronoun

* (mwa) in this dyah, which refers to the Que’in itself. The majority
view adds that the occasion for the revelation (sha'n al-merill) of this
yah supports this interpretation (the yah was revealed in refutation
of the unbelievers who claimed that the Qur'an was the work of the
Prophet himself and not che speech of God). Besides, the Prophet
often resorted to reasoning by way of analogy and ijtihdd, and did not
postpone all matters until the reception of divine revelation.”

The minority view on this subject overrules the claim to the
practice of ijtihdd by the Prophet and maintains that if it were true
that the Prophet practised ijtihdd, then disagreeing with his views
would be permissible, For it is a characteristic of ijtihad to allow
disagreement and opposition. Opposing the Prophet is, however,
clearly forbidden, and obedience to him is a Qur'inic duty upon
every Muslim (al-Nisi’, 4:14 and 59)

There is yet a third opinion on this point which, owing to the
conflicting nature of the evidence, advises total suspension. This view
is attributed to al-Shafi'l and upheld by al-Bagillini and al-Ghazil
Al-Shawkini, however, rejects it by saying that the Qur’in gives us
clear indications not only to the effect that ijtihdd was permissible for

the Prophet but also that he was capable of making errors.” Nonethe-
Jess, the ‘wlama” who have maintained this view add that such an
error is not sustained, meaning that any error the Prophet might have
made was rectified by the Prophet himself or through subsequent
revelation.** Thus we find passages in the Qur'in which reproach the
Prophet for his errors. To give an cxample, a text in siira al-Anfal
(8:67) provides: ‘It is not proper for the Prophet to take prisoners [of
war] until he has subdued everyone in the earth.’

ANI Are GrldoS al goer

This dyah was revealed conceming the captives of the battle of Badr,
It is reported that seventy persons from the enemy side were taken
prisoner in the battle. The Prophet first consulted AbO Bakr, who
suggested that they should be released against a ransom, whereas ‘Umar
ibn al-Khateab held the view that they should be killed. The Prophet
approved of Abd Bakr’s view but then the dyah was revealed which
disapproved of taking ransom from the captives. Elsewhere, in sOra al-
Tawbah (9:43), in an address to the Prophet, the text provides: ‘God
granted you pardon, but why did you permit them to do so before
it became clear to you who was telling the truth?’ This dyah was
revealed in regard to the exemption that the Prophet granted, prior
to investigating the matter, to those who did not participate in the
battle of Tabik. These and similar passages in the Qur’Sn indicate
that the Prophet had on occasions acted on his own ijtihad, For had
he acted in pursuance of a divine command, there would have been
no occasion for a reprimand or the granting of divine pardon for his
mistakes.”

The majority view that the Prophet resorted to ijtihad finds further
support in the Swnnah, Thus, according to one hadith, the Prophet is
reported to have said, “When 1 do not receive a revelation {why}, 1
adjudicate among you on the basis of my opinion."

eee dm Lad gle pKa pall UY

‘The next point to be raised in this connection is whether ijtihad was
lawful for the Companions during the lifetime of the Prophet. Once
again the majority of ‘wlama” have held that it was lawful, regardless
‘of whether it took place in the presence of the Prophet or in his
absence. The ‘wlamd’ have, however, differed on the details. Ibn Hazm
held that such ijtihad is valid in matters other than the halal and hardin,

486 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Ijtihad (Personal Reasoning) 487

whe

reas al-Amidi and Ibn al-Hajib have observed that it is only
speculative and does not establish a definitive ruling. There are still
others who have held that ijtihad was lawful for the Companions only
if it took place in the presence of the Prophet, with his permission,
ot if the Prophet had approved of it in some way. Those who invali-
date ijtihad for the Companions during the lifetime of the Prophet
maintain that the Companions had access to the Prophet in order to
obtain the necessary authority, which would be decisive and final. If
one is able to obtain a decisive ruling on a juridical matter, ijnihdd,
which is a merely speculative exercise, is unlawful.” This view is,
however, considered to be weak, as it takes for granted ready access
to the Prophet; it also discounts the possibility that certain decisions
had to be made by the Companions without delay. The correct view
is therefore that af the majority, which is supported by the fact that
the Companions did, on numerous occasions, practice ijtihdd both in
the presence of the Prophet and in his absence. The hadith of Mu‘tdh
ibn Jabal is quoted as clear authority that che Prophet authorised

Mu'Sdh to resort to ijtihdd in his absence (i.e. in the Yemen).
Numerous other names are quoted, including those of Abd Bakr,
Sa‘d ibn Mu'Sdh, “Amr ibn al-‘As and Aba Masi al-Ash'ari, who
delivered ijtihad in the absence of the Prophet."* It is also reported
in a hadith that when the Prophet authorised ‘Ame ibn al~'As to
adjudicate in some disputes, he asked the Prophet, ’Shall I render
ijihad while you are present?’ To this the Prophet replicd, "Yes. If
you are right in your judgement, you cam two rewards, but if you
err, only one." It is similarly reported that Sa‘d ibn Mu‘ldh rendered
a judgement concerning the Jews of Band Qurayzah in the presence
of the Prophet, and that he approved of it.

VII. The Truth and Fallacy of Ijtihad

The jurists have differed on whether every mujtahid can be assumed
to be right in his conclusions, or whether only one of several solutions
to a particular problem may be regarded as true to the exclusion of
all others, At the root of this question lies the uncertainty over the
unity or plurality of truth in ijtihdd, Has Almighty God predeter-
mined a specific solution to every issue, which alone may be regarded
as right? If the answer to this is in the affirmative, then it will follow
that there is only one correct solution to any juridical problem and
that all others are erroneous. This would in tur beg the question of
whether it is atall possible for the mujtahid to commit a sin by render-

ing an erroneous ijtihdd. In the face of the hadith that promises a
spiritual reward to every mujtahid regardless of the accuracy of his
conclusions, added to which is the fact that he is performing a sacred
duty, is it theoretically possible for a mujtahid to commit a sin?

The ‘ulama' are in agreement that in regard to the essentials of dogma,
such as the oneness of God (tawhid), His attributes, the truth of the
prophethood of Muhammad, the hereafter, and so on, there is only
‘one truth and anyone, whether a mujtahid or otherwise, who takes a
different view automatically renounces Islam.”

With regard to juridical or shar matters, the majority of ‘ulan
including the Ash’aris and the Mu‘tazilah, recognise two types.

(1) Juridical matters that are determined by a clear and definitive
text, such as the obligatoriness of salah and other pillars of the faith,
the prohibition of theft, adultery, and so on. In regard to these
matters, once again, there is only one truth with which the mujtahid
may not differ. Anyone who takes an exception to these commits a
sin, and according to some, even heresy and disbelief

(2) Shar matters on which no decisive ruling is found in the
sources. There is much disagreement on this, The Ash‘arls and the
Mu'tazilah have held the view that ijtihdd in regard to such matters
is always meritorious and partakes of truth regardless of the nature of
the results. But according to the four leading imams and many other
‘ulama’, only one of the several opposing views on a particular issue
may be said to be correct. For it is impossible to say that one and
the same thing at the same time regarding the same person could be
both lawful and unlawful. This view has quoted in support the
Qur'Snic text where in reference to the two judgements of David
and Solomon on one and the same issue, God validated only one
The text runs:

‘And when David and Solomon bot paned yodgement on the field where some
people's sheep had strayed 10 pasture there at night, We acted as Witnesses for
their decision, We made Solomon understand it, To each We gave discretion and
knowledge. (al-Anbiya', 21;7%79)

hd J SD Y OLS 5] Oley ay gloy
bade Labingad opal egaSt LS y pill gab ad
ley LSS LT Sy

488 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Ijiihad (Personal Reasoning) 489

If there could be more than one correct solution to a juridical prob-
lem, then this dyah would have upheld the judgements both of David
and Solomon, It is thus suggested that this dysh confirms the unitary
character of truth in ijtihdd. Furthermore, when one looks at the
practice of the Companions, it will be obvious that not only did they
admit the possibility of error in their own judgements but that they
also criticised one another. If all of them were to be right in their
ijtihad, there would be no point in their criticising one another or in
admitting the possibility of error in their own ijtihdd, To give an
example, the Caliph AbO Bake is reported to have said in regard to
the issue of kalilah (j.c. when the deceased leaves no parent or child
to inherit him): ‘I decided the question of kalilah according to my
opinion, If it is correct, it is an inspiration from God; if it is wrong,
then the error is mine and Satan's.” It is further reported that when
Umar ibn al-Khaytab adjudicated a case, one of the parties to the
dispute who was present at the time said, “By God this is the truth.”
To this the Caliph replied that he did not know whether he had
attained the truth, but that he had spared no effort in striving to do
so." The hadith and the practice of the Companions on ijtihdd clearly
entertain the possibility of error in ijuhdd, A mujtahid may be right or
may have erred, but in either case, his effort is commendable and
worthy of reward.

The opposite view, which is a minority opinion, maintains that
there is no pre-determined truth in regard to ijtihddi matters. Almighty
God has not determined one particular solution as truth to the exclu-
sion of ll others. The result of ijtihdd may thus vary and several verdicts
may be regarded as truth on their merit. This view quotes in support
the same Quranic text, quoted above, which in its latter pare refers
to David and Solomon with the words: "To each We gave discretion
and knowledge.’ Had either of them committed an error, God would
not have praised them thus. It is thus implied that both were right,
and that every mujtahid attains the truth in his own way. It is further
argued that had there been only one truth in regard to a particular
issue, the mujtahid would not have been bound by the result of his
own ijtihad. His duty to follow his own ijtihid to the exclusion of
anyone chse’s suggests that every mujtahid attains the truth.” This view
seeks further support in the rule of Shariah which authorises the
imam or the mujtahid to appoint as judge another mujtahid who may
differ with him in ijtihad. This was, for example, the case when Abt
Bakr appointed Zayd ibn Thabit as a judge while it was common
knowledge among the Companions that Zayd had differed with Aba

Bakr on many issues. Had a difference of opinion in ijtihad! matters
amounted to divergence from truth and indulgence in error, AbO
Bakr would not have appointed Zayd to judicial office. And lastly,
the proponents of this view have referred to the hadith that reads
"My Companions are like stars; any one of them that you follow will
Jead you to the right path.’

opptcal pach peu tell yal

Had there been any substance to the idea that truth is unitary, the
Prophet would have specified adherence only to those of his
‘Companions who attained to it.

These differences may be resolved, as the majority of ‘ulama’ suggest.
in the light of the celebrated hadith, which we quote again: ‘When a
judge renders ijtihad and gives a right judgement, he will have two
rewards, but if he errs, he will still have earned one reward.’ This
hadith clearly shows that the mujtahid is either right (musib) or in error
(rmukhi’), that some mujtahidan attain the truth while others do not;
but that sin attaches to neither as they are both rewarded for their
efforts, Hence anyone who maintains that there are as many truths as
there are mujtahidan is clearly out of line with the purport of this
hadith. If every mujtahid were supposed to be right, then the division
of mujtahidin into two types in this hadith would have no meaning.

VIII. Classification and Restrictions

In their drive to impose restrictions on ijtihdd, the ‘ulama’ of usiil of the
h/eleventh century and the subsequent period classified ijtihad into
several categories. Initially it was divided into two types: firstly, ijtihad
that aims to deduce the law from the evidence in the sources, often
referred to as ‘independent ijthdd"; and secondly, ijtihdd that is con-
cerned mainly with the elaboration and implementation of the law
within the confines of a particular school, known as ‘limited ijdhad’
During the first two and a half centuries of Islam, there was never
any attempt to deny a scholar the right to find his own solutions to
legal problems, {¢ was only at a later period that the question of who
was qualified to practice jjtihad was raised. From about the middle of
the third/ninth century, the idea began to gain currency that only
the great scholars of the past had enjoyed the night to practice {jtihad."”
This was the beginning of what came to be known as the ‘closure of
the gate of ijtihid’, Before the fitth/eleventh century, no trace may

490 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Itihad (Personal Reasoning) 491

be found of any attempt to classify ijtihad into categories of excel-
lence, Al-Ghazali was the first to divide ijuihad into two categories,
as noted above.” This division was later developed into five, and
eventually into seven classes. While representing the prevailing
opinion of |-Ghazili admitted that independent mujtahidan
were already extinct.”* About two centuries later, the number of the
ranks of mujtahidiin reached five, and by the tenth/sixteenth century
seven ranks were distinguished, while from the sixth/twelfth century
onwards jurists are said to belong to only the last two categories on
the scale of seven.” This is as follows

(1) Full mujtakid (mujtahid fi'l-shar). This rank is assigned to those
who fulfilled all the requirements of ijtihad, They deduced the abn
from the evidence in the sources, and in so doing were not restricted
by the rules of a particular madhhab, The leamed among the Com-
panions, and the leading jurists of the succeeding generation, like Sa'ld
ibn al-Musayyib and Ibrahim al-Nakha‘t, the leading Imams of the
four schools, the leading Imams of the Sht'ah, Muhammad al-Bagir
fir al-Sidiq, al-Awz'l and many others were identified
as independent mujtahidin. It is by the authority of these that consen-
sus of opinion, analogy, juristic preference, maslahah mursalah, etc.,
were formulated and established as the secondary proofs of Shari'ah,”
Although Aba YOsuf and al-Shaybint are usually subsumed under the
second rank, Abd Zahrah, who has written extensively on the lives
and works of the leading ‘wlama’, regards them as full mujtahidiin. The
criteria of distinguishing the first from the second class of mujtahidiin
is originality and independent thought. If this is deemed to be the
case, the mere fact that a mujtahid has concurred with the opinion of
another is immaterial in the determination of his rank. For many of
the leading mujtahidiin are known to have concurred with the views
of other ‘ulama’. For example, it is known that Abé Hanifah on many
occasions agreed with and followed the views of his teacher, Ibrahim
al-Nakha‘l, but this was only because he was convinced of the
accuracy of his reasoning, and not out of imitation for its own sake.”

The question arises whether this type of ijrihad is still open or came
to an end with the so-called closure of the gate of ijtihid, With the
exception of the Hanbalis, who maintain that ijtihad in all of its forms
remains open, the ‘ulama’ of the other three schools have on the whole
acceded to the view that independent ijtihdd has discontinued.”
Another related question that has been extensively debated by the
‘wlama' is whether the idea of the total extinction of mujtahidin at any
given period or generation is at all acceptable from the viewpoint of

s time, a

and his son

doctrine. Could the Shariah entertain such a possibility and maintain
its own continuation, both at the same time? The mujority of the
‘wlama’ of usil, including al-Amidi, Ibn al-Hijib, Ibn al-Humam, Ibn
al-Subki and Zakarlya al-Ansiri have answered this question in. the
affirmative, whereas the Hanbalis have held otherwise. The Hanbalis
have argued that jjtihid is an obligatory duty of the Muslim commu-
nity, whose total abandonment would amount to an agreement on
deviation/error which is precluded by the hadith which states that
“My community shall never agree on an error.’?

Wall de gl FY
To say that ijtihdd is a wajih, whether “ayni or kafa'l, takes it for granted
that it may never be discontinued. This is also the implication of
another hadith which provides that ‘a section of my wmmah will

continue to be on che right path; they will be the dominant force and
they will not be vanquished till the Day of Resurrection’.

aL gd om ea ls SH le gl op atl JIZ Y

Since the successful pursuit of truth is not possible without knowl-
edge, the survival of mujtahidiin in any given age (‘asr) is therefore
sustained by this hadith, Furthermore, according to some ‘wlamd’, the
duty to perform ijtihdd is not fulfilled by means of limited ijtihdd or
by practising the delivery of fatwi alone. According to the Hanbalis,
the claim that ijtihdd has discontinued is to be utterly rejected, Ijrihdd
is not only open, but no period may be without a mujtahid. The Shi‘ah
Imamiyyah have held the same view. The Shi‘ah, however, follow
their recognised imams, in whose absence they may exercise ijtihdd
on condition that they adhere, both in principle and in detail, to the
rulings of the Imams, In the absence of any ruling by the Imams, the
Shy‘ah recognise ‘agl as a proof following the Qur'an, the Sunnah, and
the rulings of their Imams,"' And finally, it may be said that the notion
of the discontinuation of ijtihdd would appear to be in conflict with
some of the important doctrines of Shariah. The theory of ijma’ for
‘example, and the elaborate procedures relating to giyis, all proceed

‘on the assumption that they are the living proof of the law and
presume the existence of mujtahidin in every age."*

(2) Mujtahidan within the school, These are jurists who expounded
the law within the confines of a particular school while adhering to
the principles laid down by their Imains. Among the prominent names

PRINCIPLES OF ISLAMIC JURISPRUDENCE

492

Iitihad (Personal Reasoning) 493

that feature in this category are Zufar ibn al-Hudhayl, Hasan iba
Ziyad in the Hanafi school; Isma‘Tl ibn Yay al-Muzant, ‘Uthman
Taqi al-Din ibn al-Salab and Jala} al-Din al-Suyaqi in che Shafi'y; Tbn
‘Abd al-Barr and Aba Bakr ibn al-‘Arabi in the Maliki, and Iba
Taymiyyah and his disciple Iba Qayyim al-Jawriyyah in the Hanbali
schools. It is observed that although these ‘wlamd’ all followed the
doctrines of their respective schools, nevertheless they did not consider
themselves bound ¢o follow their masters in the implementation of
the general principles or in arguments concerning particular issues
This is bome out by the fact that they have held opinions that were
opposed to those of their leading Imams."?

(3) Mujtahidiin on particular issues. These are jurists who were
competent to elucidate and apply the law in particular cases which
were not settled by the jurists of the fit and second ranks. They
did not oppose the leading mujtahidan and generally followed the
established principles of their schools. Their main preoccupation was
to elaborate the law on fresh points that were not clearly determined
by the higher authorities. Scholars like Abu'l-Hasan al-Karkhf and
Abd Ja'far al-Tabawi in the Hanafi school, AbG al-Fadl al-Marwazi
and Abd Ishiq al-Shirtzt in the Shafi'l, AbO Bakr al-Abhirt, in the
Maliki and ‘Ame ibn Husayn al-Khirag! in the Hanbalt schools have
been placed in this category

All the preceding three classes were designated as mujtahidiin, but
the remaining four classes of ‘ulama’, as described below have been
classified as imitatons."*

(4) The so-called ashdb al-takhrij, who did not deduce the abletm
but were well converant in doctrine and were able to indicate which
view was preferable in cases of ambiguity, or regarding suitability to
prevailing conditions."

(5) The ashab al-tarjth are those who were competent to make com-
parisons and distinguish the correct (sahth), the preferred (rij, arjah)
and the agreed upon (mufid bihd) views from the weak ones. Authors
like ‘Ala’ al-Din al-Kisint and Burhin al-Din al-Marghinin! of the
Hanafi school, Mubyi al-Din al-Nawaw of the Shifi', Ibn Rushd
al-Quryubi of the Maliki and Muwaflaq al-Din ibn Qudimah of the
Hanball schools and their equals have been placed in this category."

(6) The so-called ashab al-tashi: those who could distinguish
between the manifest (zihir al-riwéyah) and the rare and obscure (al-
nawadir) views of the schools of their following. Textbook writers
whose works are in use in the various madhahib are said to fall into
this category."”

It will be noted here that the previous three categories are some-
what overlapping and could be unified under one category to comprise
all those who drew comparisons and evaluated the strengths and
weaknesses of the existing views

(7) And finally the mugallidin, or the “imitators', who lack the
abilities of the above and comprise all who do not fall into any of the
preceding classes. It is said concerning them: “They do not distinguish
between the lean and the fat, night and left, but get together what-
ever they find, like the one who gathers wood in the dark of the
night.’

While referring to this classificanon, Aghnides is probably right in
observing that “it implies a gratuitous assumption that the latter
mujtshidin could not show greater independence of thought’. The
restrictions that were imposed on ijtihdd and the ensuing phenome-
non of the “closing of it gate’ are, in the most part, an historical
development that could find litle if any support in the legal theory
of ijtihdd. Sumilarly, the notion that the ‘ulamd', at around the begin
ning of the fourth century, reached such an immutable consensus of
opinion that further ijtihdd was unnecessary is ill-conceived and un-
tenable” The mendacity of such a claim is attested by the rejection
on the part of numerous ‘wlamd’, including those of the Hanball
school and the Shy'ah Imamiyyah, of the validity of such 3 consensus

An early influence in the direction of a return to original ijtihad
was the Hanbalt jurist-theologian Iba Taymiyyah, and his disciples,
who inspired the renewed call for the practice of ijtihad, especially on
the part of the Wahhabt and the Salafiyyah movements in the Hijaz.
‘Authors throughout the Muslim world have begun to criticise taglld
and advocate the continued validity of ijtihad as a divinely prescribed
legal principle. A number of most prominent ‘wama'’, including Shah
Walt Allah, Muhammad ibn Ism3'll al-San"anf, Mubammad ibn “Ali
al-Shawkdni and Ibn ‘Ali al-SanGst led the call for the revival of
iithid® The nineteenth century Salafiyyah movement in the Hijaz
advocated the renovation of Islam in the light of modern conditions
and the total rejection of tagitd.

‘Al-Shawkini (d. 1839 ap) vehemently denies the claim that
independent mujtahidan have become extinct, a claim that smacks of
*erass ignorance and is utterly to be rejected’. The same author goes
‘on to name a number of prominent ‘wlama’ who have achieved the

tank of erudition in Shari'ah. Among the Shafi'ls, for example,
at lease six such ‘ulama" can be named who have fulfilled, in an un-
interrupted chain of scholarship, all the requirements of itihad. These

494 PRINCIPLES OF ISLAMIC JURISPRUDENCE

tihad (Personal Reasoning) 495

are ‘Izz al-Din ibn ‘Abd al-Salim and his disciple, Ibn Dagiq al-Id,
then the latter’s disciple Mubammad ibn Sayyid al-Nas, then his
disciple Zayn al-Din al~‘Traqi, his disciple Ibn Hajar al-‘Asqalani, and
his disciple, Jalal al-Din al-SuyG. Thar they were all fall mujtahidiin is
attested by the calibre of their works and the significant contributions
they have made to the Shari'ah. The first two of these are particularly
prominent, In his well-recognised junstic work, al-Bahr al-Mubtt,
Muhammad ibn ‘Abd Allah al-Zarkashi has acknowledged that they
had both attained the rank of mujtahid. ‘It is utter nonsense” writes
al-Shawkinl, ‘to say that God Almighty bestowed the capacity for
knowledge and ijtihad on the bygone generations of ‘lama’ but denied
it to the later generations.’ What the proponents of tagitd are saying
to us is that we must know the Qur'in and the Sunnah through the
words of other men while we still have the guidance in our hands,
Praise be to God, this is the greatest lie and there is no reason in the
world to vindicate it.”*

Iqbal Lahori considers the alleged closure of the gate of ijtihad to be
2 pure fiction’ suggested partly by the crystallisation of legal thought
in Isham and partly by that intellectual laziness that, especially in periods
of spiritual decay, tums great thinkers into idols. Iqbal continues: if
some of the later doctors have upheld this fiction, ‘modem Islam is
not bound by this voluntary surrender of intellectual independence’.

Abd Zahrah is equally critical of the alleged closure of the door of
ijtihid, How could anyone be right in closing the door that God
Almighty has opened for the exertion of the human intellect? Anyone
who has advanced this claim could surely have no convincing argu
ment to prove it. Abd Zahrah continues: the fact that {jtihdd has not
been actively pursued has had the chilling effect of moving the people
further away from the sources of the Shari'ah. The tide of taglid has
carried some so far as to say that there is no further need to interpret
the Qur'an and hadith now that the door of ijtihdd is closed. In AbG
Zahrah's phrase, ‘nothing is further from the truth, and we seck
refuge in God from such excesses’.

Conclusion

The conditions under which ijtihdd was formerly practised by the
‘ulama’ of the early periods are no longer what they were. For one
thing, the prevalence of statutory legislation as the main instrument
of government in modem times has led to the imposition of further
restrictions on ijtihdd. The fact that the law of the land in the majority

of Islamic countries has been confined tw the statute book, and the
parallel development whereby the role of interpreting the statute has
also been assigned to the courts of law, has had, all in all, a dis-
couraging effect on ijtihdd. The mujtahid is given no recognised
status, nor is he required to play a definite role in legislation or the
administration of justice in the courts. This is confirmed by the fact
that many modern constitutions in present-day Muslim countries are
totally silent on ijtihad. It was this total neglect of ijtihdd chat
prompted Iqbal Lahori to propose, in his well-known work ‘The
Reconstruction of Religious Thought in Islam, that the only way to utilise
both ijma* and ijnihad (which he refers to as the ‘principle of move-
ment’) into the fabric of modern government is to institutionalise
ijrihad by making it an integral feature of the legislative function of
the state.”

Essentially the same view has been put forward by al-Tamiwt, who
points out that jtihad by individuals in the manner that was practised
by the fiugaha’ of the past ts no longer suitable to modem conditions,
The revival of ijtihad in our times would necessitate efforts that the
government must undertake. Since education is the business and
responsibility of moder governments, it should be possible to provide
the necessary education and training that a mujtahid would need to
possess, and to make attainment to this rank dependent on special
qualifications. Al-Tamaw! further recommends the setting up of a
council of qualified mujtahidiin to advise in the preparation and approval
of statutory law so as to ensure its harmony with Sharf ah principles.

This is, of course, not to say that the traditional forms of learning in
the Shart'ah disciplines, or of the practice of ijtihad, are obsolete. On
the contrary, the contribution that the ‘wlamd" and scholars can make,
in their individual capacities, to the incessant search for better solutions
and more refined alternatives should never be underestimated. It is
further hoped that, for its part, government will also play a positive
role in preserving the best heritage of the traditional modes of learn-
ing, and encourage the ‘ulama’ to enhance their contribution to law
and development. Universities and the legal professions in many Islamic
countries are currently committed to the training of lawyers and
barristers in the modern law stream. To initiate a comprehensive and
well-defined programme of education for prospective mujtahidan,
which would combine training in both the traditional and modern
Tegal disciplines, would not seem to be beyond the combined capa-
bilities of universities and legal professions possessed of long-standing
experience in Islamic legal education.

496 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Jjtihdd (Personal Reasoning) 497

Furthermore, in a Shari oriented government it would seem
able that the range of selection to senior advisory, educational
and judicial posts would include the qualified ma in. This would
hopefully provide the basis for healthy competition and in
high performance among the candidates, and help to create a definite
role for them in the various spheres af govern

Two reform measures need to be taken in order to make ijtihad a
viable proposition. Firstly ds collective
endeavour so as to combine the skill and contribution not or

tives for

in moder times

2 of the

scholars of Shari‘ alt, but of experts in various disciplines. This is because
al mastery of all the relevant skills that are
porary society is difficult for any one individual to attain, We r
ihad with the Quranic principle of consultation (shiirl)
and make jjtihad a consultative process. The second point to be proposed

mmporunt to contem=
dito

combine

concerning ijtihdd is related to the first in that ijtthdd has in the past
been seen as a juristic concept and remained the first preserve of the
jurist (mujtaltid). This might have been duc to the fact that the Sharf ah
dominated nearly all other fields of Islamic scholarship, But ijtthad in
the sense of self-exertion is a method of finding solutions to new issues
in light of the guidance of waby. It is in this sense a wider proposition

that may be exercised by scholars of Shar ah as well as experts in other
disciplines, provided that the person who attempts it acquires mastery
of the relevant data, especially in the Que’in and the Sunnah, pertain-
ing to his subject.

The non-tevealed sources of Sharf‘ah, such as general consensus,
analogical reasoning and juristic preference, are all sub-varicties of
ijtihad. They serve the purpose, each in their respective capacity, to
relate the general principles of Sharf ah to new issues. These are nearly
all rationalist doctrines that enable the qualified scholar to find fair and
reasonable solutions to problems as they arise. The detailed methods
and procedures that each of these doctrines proposes are founded on
the premise that the law of Islam was not given and delivered all at
once, The idea, in other words, that the law must evolve and keep
abreast with social reality lies at the root of ijtihdd and all its sub-
divisions, Some of the doctrines of usil, such as maslabah, istishab and
istibsan, hold great potential for diversifying the substance of ijtihad.
Yet the conventional usiil has subjected most of these to a variety of

conditions which tends to suppress their originality and potential.
These ean now be utilised perhaps each as a means of injecting fresh
impetus into ijtihid im order to enhance the adaptability. of law to
social reality. One way of doing this would be an explicit recognition

of doctrines such as maslahah and istihsin and the ways they can be
utilised in contemporary legislative and judicial processes. We note, for
example, that maslahah relates more meaningfully to legislation, while
istibsdn involves making necessary exceptions and refinements in the
existing law and may therefore relate better to the process of adjudi-
cation, although the potential contribution of istihsdn to legislation
and reforming certain aspects of the Sharah may also be realised.

NOTES

1, Inlahi (lamie Law, p. 1p) has thus aptly uted: “There are three prominent and
fundamental sources of lilamic Law; the Holy Que"in, the Suamah
and yhad

a. Armidl, Doki, 1V, 163; Shawhdnl, Johid, p. a50; Khudart, Usd, p. 367
5. AbO Zahrah, Usil, p. yor
+ Shawn, Inhad, p. 290; Zahayr, Ujil, TV, a3y~s; Badri, Us p. 971
$. Ghuaralt, Mussa, 11, 103: Amidh, iki, 1, 163

the Holy Prophet

Shawkinh, Isha, p49

Tid. p. 252: Zuhayr, Und, IV, 225: Aghnides, Muhammaden Theories, p. 91; Badin,

&. Kamath, Adu’, p. 29; Badran, Cail, p. 473

9. ADO DiwOd, Suman

0. Kaaatb, Adwi’, p. 30, Dadvan, Uhdl, p.a7e

11, Aba Dawad, Sunan (Hisan's trans.), 1, 209, hadith, no, 49.

1a. Shawkdat, Inhid, p. 259; Khudart, Uy, p. 6%; Zuhayr, Cyd, 1. 347

1). Ghueal, Musag 1, 124; Amnid, Me, IV, 206; Kan, Adal” p. 119

14. Amid, Ihkiim, TV, v4; Khodart, Unilp. 98

15. Amit, Ibkim, 1V, 206; Kassib, Adud’, p. 13

16. Aamidh, fbkim, 1V, 14; Khudaet, Lvl p. 9

17. Moo Qayyin, fam, 1, «77: Kat, Adve’, p. 10k; Badran, Usal p, 4%

14. id

19. Ghasit, Mostanf, 1, 120; Amie, thham, 1V, 14; Tbe Quyyim, Pim, 1, 71-72:
Muhmanit, Fatugiah (Ziadeh’s trans), p. 97

30. Aba Diwod, Suman, I11, 1019, hadtih 00. 3585

31. Ghazi, Mista, 1, 63-4

a2. Ab0 Diwad, Suman, If, 101-3, badhih no. 3867

25, Ghazal, Mstay®, 1 108; Ambit, dhito, 1V, 186,

34. Bukhit, Sobih (lsanbul es), VI, 84: Amit, iim, 1Y, 209

35, Ibid, 1, 35-6

26. thn Mijih, Soman, 1, Ai, hadtih no. 224: Amnidt, thhim, 1V, 230. 234 Shatibt,
Muwafagt, IV, 140

37. thn Quyyin, Fle, 1, 176 Mahmut, Folsdih, p. 9s; Kash, Adv, p. 19

3A. Ghazi, Mines, i, 106 too Qayyim, Fm, 1, 176 Kawsh, Adw’, p. 19.

29. CE Kaa, Adv, p, 20

Hasan’ tears.) 11, 407, hadlth no, 1963

98 PRIN s¢ LA x [jtihad ynal Reasoning) 499
f . z . hea’.
pe mia w int, AbO Z.
‘ an, Mf Karri al-Dy musiahid
4h Amidh, v Abe h Ud K Ad Abdur Fahim, Juripmed
Stuwk 7 4. Abs Zahra, Usd p. 5147 Ka p40; Aghnides, Muhammadan Theon
A ab, { k Adu’, p. 40; Aghniles, Mubarnimedan Team
K Adu Wen .
A w i k . 4am Faslue Rah mm, pp. 197f& Enaya, Mod
For other bibl k pea oi
3. Shawldat, b 4. Abo Zahrah, Ua
‘ ant, teh, p Kasih, Adu haa ha " 9S. Lahori, The Reconstruction, p17
ome reserva ut the valde Prop! ys. Trent, Sehun
pases that he Prop el perm P .
Jixcourteous (Museay®, tt, 104)

CHAPTER TWENTY

A New Scheme for Usiil al-figh

Unil alfigh is one of the most distinctive areas of Islamic learning, a
mother’ discipline in Shari ah, and a genuine manifestation of Islamic

and scholarship throughout its long bistory of development.

Its pervasive influence on almost all other branches of Islamic learn
ing has consistently placed usil al-figh at the head of the academic and
educational curricula of Islam. However, owing to a variety of factors,
wil al-figh is no longer capable of serving the goals for which it was
originally designed and developed. Usal al-figh has often been described
3s theoretical discipline that has lost touch with the realities of social
change, and its effectiveness in stimulating ijtihad on new issues has
been increasingly called into question.

As we note, the doctrines and methods of usil alfigh, such as imal,
divs, istibsan and istislab, are conspicuously absent in the legislative
and judicial decision-making processes of contemporary Muslim
countries. This chapter enquires into the reasons behind the gap that
has increasingly isolated ui! al-figh from statutory legislation, and then
Proposes an umbrella scheme with a view to bridging the gap between
the theory and practice of this discipline. Specific issues pertaining to
the various doctrines of ull al-figh, including ijtihad, ima, qiya, istihsin
and istishab, have already been identified and discussed in the relevant
chapters of this book, together with reform proposals that seek to
improve the inner working and methodology of these doctrines. I have
discussed reform proposals concerning these doctrines in my conclud-
ing remarks to the various chapters. I take the opportunity now to
examine the general scheme of usil al-figh and explore the possibilities
of greater consolidation and coherence between its various parts. The

A New Scheme for Usil al-figh 501

changes I discuss in the following pages also seek to enhance the
utility and relevance of the discipline to statutory legislation. I shall,
at the outset, draw attention to issues regarding the theoretical
orientations of usil al-figh, and the role of the time-space factor in its
methodology; I shall then expound upon a new scheme for its re-
organisation and reform.

1, Theoretical Orientations of Usil al-Figh

Usal al-figh is often described as a theoretical, rather than empirical,
discipline, which is studied more for its own sake than as a means
by which to develop the law in relation to new issues. This is one
of the problems of the legal theory of usfl, which took a turning for
the worse with the domination of taglid around the fourth/tenth
century. With the so-called closure of the door of ijtihid, the ‘lama’
tesorted Jess and less to the sources of Shariah for finding solutions
to problems. Instead of addressing social issues and attempung to find
new solutions, the ‘ulamd’ of later ages (al-muta’akhkhirin) occupied
themselves mainly with the elaboration, annotation, abridgement,
summaries and glossaries of the works of their predecessors. At first,
{jtihad was discouraged. Then in the fifth/eleventh and sixth/eweltth
centuries, scholars were restricted to tanith, or giving preference to
the opinion of one imam or another on questions of figh. However,
tanith was also discouraged and scholars were restricted to choosing
between rulings within a single madhhab, In this way ‘the door to
independent legal thought was shut and then barred.” With the
development of a gap between legal theory and practice, there then
came a stage where usil al-figh began to be used as a means by which
to justify taglid, Imitators studied the sill and utilised its methodology
in order to defend their unquestioning conformity to the established
doctrines of the past. Unwarranted references to the general consen-
sus, or ima’, of the ‘wlamd’ of the past aver one ruling or another
proliferated, and often minor and relatively obscure opinions were
elevated to the rank of ijmd’2 The methodology of usil, which was
primarily designed to regulate and encourage ijtihild, was then used
for purposes that were alien to its original intention.

A certain lag between the theary and practice of a discipline is
admittedly not unexpected. Theoretical articulation often follows
practical development. It is not surprising, therefore, to note that uyil
al-figh had a certain degrce of theoretical orientation even during the
ema of ijtihdd, The question has thus arisen, and debated in many a

$02 PRINCIPLES OF ISLAMIC JURISPRUDENCE

A New Scheme for Usil al-figh 503

reputable text of wil, as to which came into being first, figh or supil
al-figh, the law itself or the theory and sources of law?! One of the
two opposing answers to this question has it that figh could not have
developed without its sources, and this would mean that uiil al-figh
preceded figh. But it seems more likely that figh preceded mil al-figh
Figh began to develop during the lifetime of the Prophet, at a time
when there was no urgent need for a methodology, and this situation
continued unchanged during the period of che Companions. Important
developments in usill occurred only during the second/eighth and
early third/ninth centuries.‘ As one observer commented, “ust al-figh
was a retrospective construct, ..Indications are that ugil al-figh was a
manner of systematising positive law that had already been arrived at
largely as a result of local and other needs without necessary recourse
to the sources,”

The theoretical orientation of uyill persisted even after it was articu-
lated and refined. In historical terms, the articulation of the doctrines
of usil took place around the early third century, that is, im the last
third of the three centuries of itihdd. Thus, the main purpose for which
the theory was supposed to be utilised, namely, to regulate ijtihdd,
was soon beginning to decline. Furthermore, many of the doctrines
of jal remained controversial and were increasingly subjected to
technicalities and supulations that tended to erode their effectiveness.
The increased complexity of doctrines such as giyils and istihsdn, and
conditions such as unanimity and universal consensus as a prerequisite
of {ji were bound to affect the practical utility of these doctrines,

The legal theory that al-Shifi'l articulated in his Risiilah was not
burdened with technicality and regimentation of the kind that
were subsequently webbed into it by the proponents of taglld. These
later additions were in turn not so much motivated by the ideal of
accommodating social changes as by the concem to preserve the
heritage and traditions of the past. Some of the complexities of
Hellenistic thought and logic found their way into usil al-figh and
moved it further away from the realities of social life.’ There is little
doube that some of the doctrines of upil such as ijma’ and qiyis were
partly designed to encourage stability and curb the influence of foreign
traditions into the corpus juris of Islam. Evidence also suggests that the
development of usiil was influenced by the rift over legitimacy
between the ‘ulama’ and rulers. While the ‘ulama’ refused to acknowl-

edge to the rulers the authority to legislate and interpret the Sharf'ah,
the rulers denied the ‘ulama’ a share in political power. The fact, for
example, that Imam al-Shafi'T wrote so strongly against istihsan and

equated it with caprice and arbitrary tampering with Shariah was
designed partly to deny the political rulers the opportunity to circum-
vent the musiiy and imi on grounds of political expediency and
preference

Abu Sulayman has spoken of the lack of empiricism in the works
‘of the ‘wlamd’ and their reliance on ‘deduction from the Islamic
texts as their main method in acquiring knowledge...and not much
attention was paid to developing systematic rational knowledge
pertaining to law and social structure.” He then states that in regard
to other subjects, such as medicine, mathematics and geography,
Muslim scholars relied on text and reason. They were empirical,
experimental and applied both induction and deduction." However,
this was not the case in conventional uyill, which was ‘developed in
response to the needs of maintaining the classical social system of
the dynastic period.’ With the emergence of the rapidly changing
industrial society ‘the classical frame of analysis is no longer workable
of acceptable.””

The gap between theory and practice grew wider as a result of the
fact that usiil al-figh was developed, like the rest of Islamic law, by
private jurists who worked in isolation from government, The “wana”
were not involved in the practicalities of government and their rela-
ions with government authorities were often less than amicable. Juristic
doctrines were often advanced and elaborated without involving
government policy. Note, for example, that nearly all the instances
Of jimi that are cited in the textbooks refer to the consensus of ‘wlamd”
and private jurists, there being hardly a single record of a governmment~
sponsored assembly of the leaned to have acted as a vehicle of ijmit’,
‘or even of ijmd in which the government played a visible role. For
their part, the goverament authorities seem to have condoned and
‘encouraged tagiid as this meant that leadership and initiative in both
political and legal spheres rested with the government in power. The
‘ulama’ were consequently left to their own devices to utilise and
‘even modify the legal theory 0 as to suit the requirements of tagitd,

The early ‘lama’ denied the increasingly secular Umayyad rulers
the legitimacy to legislate of to interpret the law, and the rift became
more visible under the Abbasids who did not allow the ‘ulama’ a share
in political power. Thus the strugwle over legitimacy had ‘a serious
negative influence in changing the sound psychological and rational
cnvironment created by the Prophet and which had dominated
carlier periods.’ The rulers jcrove to enhance the role and authority
of reason over the texts, as this would give them freedom in the

$04 PRINCIPLES OF ISLAMIC JURISPRUDENCE

A New Scheme for Usil al-figh 505

sphere of legislation, but the ‘wlamd” were keen to deny them» that
very freedom. It was against this background that they articulated the
methodology of usill in order to minimise abuse of power by the
rulers and their liberty with the Shari'ah. Imam al-Shafi‘ls attempt,
for example, to equate ijtihad with giyas as two terms with the same
meaning was clearly indicative of a purpose to minimise the role of
independent reasoning in the development of Shariah. The wider
scope of reasoning was thus to be reduced to only one form, that is,
analogical reasoning. The result was a certain “distortion of issues,
arbitrariness and spread of spurious materials within the fabric of ugill
alefigh.""

The ‘wlamd"s assertion that there was no further need for original
Wulhad (i.e. the closure of the door of ijtihad) was prompted by the
struggle for legitimacy, and this was a step that could only have been
taken in an atmosphere of despondency at a time when Islamic thought
and scholarship had lost enthusiasm for originality and renewal.” It
sms that the problem of legitimacy peristed, and helped to alienate
the ‘ulama’ from the political leaders in Muslim societies. The pattern
that has prevailed during the era of nationalism and constitutional
government is also one of isolation between the ‘wlamd and governs
ment, although for different reasons. It now appears that the popular
vote, rather than the approval of the ‘lama’, is seen as a legitimising
force in politics. The advent of constitutionalism and government
under the rule of aw brought with it the hegemony of statutory
legislation, which has largely dominated legal and judicial practice in
Muslim societies, The government and its legislative branch tend to
act as the sole repository of legislative power. The ‘wlama" have no
recognised role in legislation, and the role and relevance of ull
to the applied law of the land appears to have become even more
uncertain and remote

Il. The Time-Space Factor

The legal theory of usil falls short of integrating the time-space factor
into the fabric of its methodology. This is also a tagitd-related phenom=
enon and is reflective of an influence that fails to comply with the
Quranic teachings on rational enquiry and pragmatism in finding
effective solutions to problems." One can vividly see the role of the
time-space factor in the early history of the Qur'an when we compare
its Meccan and Medinan portions. The Qur'an took into account the
prevailing conditions of Arabian society, which were reflected not

only in the substantive laws that it introduced in each phase, but also
in the occasions of its revelation (ashab al-nuziil), the form and style
of its language, the intensity of its appeal and the psychology of its
discourse.

The fact that the Qur'an was revealed gradually over a period of
twenty-three years is itself testimony to its regard for changes of
circumstances in the life of the nascent community. God Most
High revealed His message to the people with consideration of their
capacity for receiving it and the realities with which they were
surrounded in Mecca and Medina respectively.'* We note, for
example, that Muslims were not allowed to fight with non-Muslims
when they were a minority in Mecea, but were later allowed to do
so when they formed 3 community and government of their own in
Medina; when in Medina, the Qur'an initially instructed peaceful
relations with the Jews, but then envisaged a different scenario when
relations with the Jews became increasingly hostile

The time-space factor is also the principal cause behind the inci-
dence of abrogation (nask) in the Qur'an and Sunnah. Naskh is
by and large a Medinan phenomenon that occurred as a result of
the changes the Muslim community experienced following the
Prophet's migration to Medina, Certain rules were introduced at an
early stage of the advent of Islam at a time when Muslims were a
minority in a dominantly non-Muslim environment. Later, when
they acquired sovereign authority, some of the earlier laws were
abrogated and replaced by new legislation. "?

Ina section entitled *The Danger of Too-Literal an Interpretation
of the Sunnah’, al-'Alwani has highlighted the ‘dictionary-based
culture’ that prevailed over the climate of Islamic scholarship and gave
rise to a ‘literalist approach which relied heavily on dictionary-
oriented interpretation’, at the total neglect of "the time-space factor,
thus lending strength to factors which impeded the renaissance of the
ummah’.® This was a departure from the spirit of the Prophetic
‘Sunnah, which was a living reality and guide for daily life and took
full cognisance of the prevailing conditions, The confusion became
apparent with the onset of a mentality that ‘the exact circumstances
which brought about a hadith, could be repeated many times, which
is impossible in real life’.

‘The failure in classical jurisprudence to admit the time-space factor
into the fabric of its methodology of interpretation and ijtihad has
added to the problem of the authenticity of Sunnah, When a certain
arcumstantial instruction of the Prophet is taken to be the embodiment

$06 PRINCIPLES OF ISLAMIC JURIS®RUDENCE

A New Scheme for Usal al-figh $07

enough to verify the basic

of a permanent Sunnah, it is no long
outline and message of the reported Sunnah, but the precise wording
as well; and this is extremely difficult. Neglect of the time-space factor
in the treatment of Sunnah has added to the problem of its authen-
ticity, especially when the hadith is read without proper consideration
understanding of the effect of space-time on concrete situations."
Abu Sulayman has observed that simple and direct deductions from
specific textual materials ‘without properly accounting for changes
involving the space-time clement of the early Muslim period is a
retrogressive step’.’? We may refer, for illustration, to the debate over
the purpose and import of the Qur'inic text stating that a smaller
number of Mushm warrion would overcome, by dint of their commit
ment, perseverance and sacrifice, a larger number of enemy soldiers
(see Al-Anfll, 8:66). Commentators have focused attention entirely on
the numbers involved and are preoccupied with questions of whether
not it is permissible to flee from battle if the enemy forces are less
than double, and so on.” ‘The debate here ignores the point, men-
tioned by Imam Malik, that strength or weakness is not necessarily a
question of number but of power, state of readiness and equipment,
To relate the purport of this passage to warfare in a different time and
place, one would surely need to depart from the particularities of
the text and highlight instead its general purpose. It is concern for
literalism at the expense of empiricism that has led many a devout
Muslim to insist on adhering to the letter of the hadith, for instance, in
the giving of foodgrains in zakat al-figr (charity given on the occasion
of ‘id, marking the end of Ramadan). The text has admittedly not
mentioned that the monetary equivalent of a staple grain may also be
given on this occasion, The ruling of the hadith was obviously suit-
able for its own time, bearing in mind the uncertainty of food supplies
in the market place of Medina, but that situation has evidently
changed. Al-‘Alwant has written of his personal experience, in this
connection, when he addressed a gathering and said that zakat al:
may, under contemporary conditions, be paid in its cash equivalent
in accordance with today’s living standards. He then writes: "My
explanation made some people extremely angry and one fagih came
the next day to the mosque with quantities of barley and com and a
measuring cup and started giving out to people in an effort to prove
that you can literally implement the Prophet's instructions today."”"
The beginning of the fasting month of Ramadan is signified, as the
Qur'an provides, by the sighting of the new moon. This was, of
course, the most reliable method that could be achieved in the early

days of Islam. But the sighting of the new moon with the naked eye
would seem to be unnecessary if the beginning and end of Ramadin
could be established with the aid of scientific methods. To insist,
therefore, on a literal enforcement of the text while turing a blind
eye to new technological means would not only amount to hardship
(hara)), under certain circumstances at least, but would also defy the
essence of Qur’Snic teaching on rational enquiry and empirical truth.
“Itis just not possible today’ as al~‘Alwani rightly observes ‘to impose
proposals and ideas put forward in Medina by Imam Malik and his
contemporaries fourteen hundred years ago." To ignore subsequent
developments in human sciences, modern commerce and economics
is likely to result in poverty and hardship and would therefore contra-
vene the general objectives of the Qur'an and Sunnah

Ignoring the role of time-space in the understanding of the Qur'an
has also encouraged a certain tendency toward fragmentation and
neglect of the internal structure of its values, To say, for example,
that the verse of the sword ‘And wage war on all the idolaters as they
wage war on all of you’ (al-Tawbah, 9:36)

WS Sig US WS oS NN Ly

has abrogated the Qur’inic address that validates peaceful relations
with non-Muslims ‘who fight you not for [your] faith nor drive you
out of your home’ (al-Mumtabinah, 60:8)

pS M2 oH FH by ed QD pF atts # cell

isnot only neglectful of the time-space factor, but totally unwarranted.
The claim does not end with this, but goes on to maintain that the
verse of the sword has abrogated over one hundred verses in the Qur'an
which advocated a wide range of moral values including mercy,
forgiveness, peace, fair treatment and tolerance towards non-Muslims,
To invoke askh in such terms might have served a purpose at time
when Muslims were the dominant military and political power on
earth, bot such an approach, questionable as it was, could hardly be said
to be acceptable under a totally different set of circumstances today.

III. Usiil al-Figh Revisited

Our main concem here is to propose an alternative scheme that can
inject pragmatism into the fabric of an otherwise theoretical discipline

$08 PRINCIPLES OF ISLAMIC JURISPRUDENCE

A New Scheme for Usiil alsfigh 509

that cannot effectively relate to the realities of law and government
in modern times. The alternative that is proposed must seek to strike
a balance between the need for continuity and preservation of a
valuable heritage and a determined and purposeful move in order to
change the existing impasse regarding usiil al-figh.

There are two areas where improvements could be made in conven
tional usil al-figh, We note, on the one hand, that the methodology of
usil has not integrated the Qur’3nic principle of consultation into its
doctrines and procedures. The second shortcoming of sil al-figh, not
unrelated to the first, is its detachment from the practicalines of govern~
ment, and its near-total reliance on private ijtihdd by individual jurists,
Here we note once again that the Qur'anic dictum of obedience to
those who are in charge of community affairs, che ili] al-amr, has not
received due attention in the conventional legal theory. Despite the
unmistakable reference of the fil al-amr to government, junsts and
commentators have tended to ignore this and have instead considered
the ‘ulama” to be the principal or even the only frame of reference in
the understanding of this term. The ‘ulama’ of usill were obviously
content with a somewhat one-sided interpretation of the Que’dn in
that the theory they developed was such that it could, from begin
ning to end, be operated by the ‘wlama’ without the involvement of
the government in power and in total isolation from it. This aspect
of legal theory is conspicuous in the conventional expositions of imi,
which is defined as ‘the unanimous agreement of the mujtahidin of
the Muslim community at any period of time following the demise
of the Prophet Mubammad on any matter.’*!

It is remarkable that the definition of ijmi’ is oblivious of both of
the Quranic concepts of shri and slid al-amr, especially in reference
to the government and the role it might reasonably be expected to play
in consultation and in taking charge of community affairs. Jjmd’ was
defined so that the ‘ulama’ could in theory conclude it and make it
binding on the government without either consulting or seeking the
consent of government authorities. We are aware, on the other hand,
that ijmi’ represents the single most important concept in the legal
theory of usiil, which offers the potential of making the whole of the
legal theory pragmatic and viable. Jimi should naturally involve
consultation among the broad spectrum of the ali al-amr, and ensure
collective decision-making through participation and involvement of
both the government and the ‘ulamal” and of virtually everyone who
can contribute to its objectives

Jamal al-Din ‘Atiyyah has suggested a new scheme for con-

ventional ujiil al-figh in which he proposes to divide the sources of
Shartah into the five main headings of: (1) the transmitted proofs,
which include the Qur'an, Sunnah and revealed laws preceding the
Shariah of Islam; (2) ordinances of the ald al-amr, which includes ijma
and ijtihdd; (3) the existing conditions or status quo, insofar as it is
harmonious with the preceding ewo categories, and this includes custom
(‘urf) and the presumption of continuity (istishab); (4) rationality (‘ag!)
in areas where full juridical ijtihdd may not be necessary (the day-
to-day rulings of government departments, for example, that seek to
ensure good management of affairs may be based on rationality alone);
(s) original absence of liability (al-bani'ah al-asliyyah), which presumes
permissibility and freedom from liability as the basic norm of Sharf‘ ah
in respect of things, acts and transactions that have not been expressly
prohibited.

The broad outline of this scheme is acceptable, notwithstanding
certain reservations that | shall presently explain. ‘Auyyah has himself
stated that the scheme he has proposed, expecially in its reference to
the transmitted proofi, relics almost otally on conventional ssi!
al-figh. In the second heading, ‘Atiyyah's scheme proposes a revised
structure for ima’ and ijtihdd. These are undoubtedly among the most
important themes of the methodology of us al-figh, and bringing
them both under the umbrella of the ordinances of ald al-amr offers
the advantage of linking this classification directly to the Qur'in,
‘on the one hand, and taking an affirmative stance on government
participation in the conclusion of ijtihdd and ijmd’ on the other, |
shall presently return to ‘Atiyyah’s views, but here I note a relevant
observation from Hasan Turib! who states that the decline of ijtihdd
was partly due to the decline in shird and then proposes that the state
and the la al-amr should take every step 10 make shiird an integral
part of decision-making processes. The public and the media can also
play a role in stimulating participation, consultation and debate unei
a consensus emerges and the majority makes its voice known, Turabi
adds that ‘decisions which are made through shard are then ratified
by the alii al-amr and implemented as juridical jjma [ijma tashet'f] or
the ordinances of governument {amr huaumt}."2

The third heading in ‘Atiyyah’s proposed scheme consolidates
under one category the two recognised proof of uyil alfigh, namely,
istishab and custom, and tends to attach to it a degree of prominence
that they were not given in their conventional expositions. A. mere
difference of emphasis in the scholastic doctrines of the madhahib,

such as the Hanafi and Shaft emphasis on custom and istishib

$10 PRINCIPLES OF ISLAMIC JURISPRUDENCE

A New Scheme for Usil al-figh 511

is not enough to underscore the importance of social
custom in the development of Shariah. ‘Atiyyah's treatment of custom
and istishab consolidates these two logically related themes, gives them
greater prominence, and thereby tries to inject pragmatism into the

respectively

rubric of the legal theory

I have hitherto commented on the first three parts of “Atiyyah’s
five-point scheme and I am of the view that the remaining two head-
ings in tha mely rationality, and original non-liability, are
superfluous and should therefore be omitted. This means that we
would have consolidated the entire range of topics in conventional
usa al-figh under the three headings of transmitted proofs, the ordi-
nances of fll al-amer and valid status quo, The second of these, namely,
the ordinances of aii al-amr, is comprehensive, bearing in mind that
the broad concept of ijtihdd subsumes a whole range of topics such
as giyds, éstihsan, sadd al-dhara'i', which, however, featured somewhat
atomistically in conventional usil al-figh, each as a separate chapter
rather than an integrated theme of a unified whole. This list of ijuihad~
pics could, of course, be extended to istishab which may be
nother sub-variety of ijtihdd, and yet it is justified to treat
istishdb, of presumption of continuity, under the valid status quo in the
proposed scheme. For istishdb is grounded in the idea of presuming
the continued validity of existing facts and situations unless there is
evidence to suggest otherwise, Even if we include istishdb under the
general concept of ijtihad, it would only come, as per conventional
legal theory, at the very end of the list of rational proof, as it is
generally regarded to be the weakest of all proofs, which is why it is
known in the conventional wslfas the last ground of fara (akthir madar
al-fatwi), To classify istishab under valid status quo would thus appear
to be acceptable, as it is not likely to feature prominently under the
category of ijtihad and ijmi, and it seems more coherent to classify it
under one heading with custom (‘uf)

There is one topic in the conventional proofs of wsil al-figh which
Atiyyah has not mentioned, namely, the fant of a Companion:
Notwithstanding some disagreement on its authority as a proof, I
propose that the fanwi ofa Companion should be included in the main
category of transmitted proofs, for we may otherwise find no place
in the legal theory for the outstanding contributions of Companions
like “Umar ibn al-Khatrab, “Abd Allah ibn Mas‘Gd and many others.
Most of the important rulings of the leading Companions were perhaps
eventually adopted under the broad concept of ijma’, yet there remains
a fairly rich legacy of rulings on which they have recorded different

t scheme,

seen as a

opinions and interpretations and these may be included under the
broad category of transmitted, yet only persuasive rather than bind.
ing, proofs of Shariah

As I stated earlier, the remaining two categories in ‘Atiyyah's
proposed scheme, namely, rationality ('aqi) and original non-liability
(bari’ah al-asliyyah), seem somewhat unnecessary and controversial,
for they add but little to its preceding three categories. We note, for
example, that rationality could be subsumed under the broad concept
of ijtihad or under any of its sub-varieties such analogy, juristic
preference and majlahah. These are all rationalist doctrines and if we
Were to open a separate category for rationality, it would be difficult
to decide where to place such other concepts as maylahah and istibsan
under rationality or ijtihdd. Furthermore, creating a new category of
proof in the name of ‘aql is bound to raise questions as to the nature
of the relationship between revelation and reason. Opening a new
chapter under ‘agl can only be justified if ‘Atiyyah had clearly
articulated the respective roles of “ag! and wahy, which he has not
Since the broad outline of “Atiyyah’s proposed scheme is in confor-
mity with the basic order of priorities that are upheld in conventional
sil al-figh, opening a new chapter in the name of rationality would
not only interfere with the other parts of the proposed scheme, but
is also inherently ambiguous and unjustified.

{As for the proposed recognition of al-bard'ah al-agliyyah as a source
or proof of Sharf ah, it will be noted once again that this is subsumed,
in conventional usiil al-figh, under the presumption of continuity, or
istishab, and it is as such a presumption, not 4 proof. Original non-
ability presumes in reference, for example, to the accusation of
crime that the accused person is innocent, or in reference to civil
litigation, that there is no liability, unless the contrary is proven in
cach ease

‘Istishab in this context presumes the normal or original state of things.
that is non-liability, which should prevail unless there is evidence to
suggest otherwise. Since this is only a presumption, it isa weak ground
for decision-making and it does not, in any case, present a case for it
to be recognised as a source or proof of Shariah in its own right, 1
therefore propose that this too should be subsumed under the thind
heading of “Atiyyah’s propased scheme, namely, the valid stanus quo.
I have in sum proposed a consolidation of ‘Atiyyah’s five-point
scheme into three and submitted that the remaining two headings are
somewhat repetitive and need not be included.

P ISLAMIC JURISPRUDEN

Conclusion

The preceding chapter highlighted the close relationship between the

textual sources of Shariah and the methodology of usiil al-figh. This was

followed by comments on literalism versus empiricism in the legal

nici) Feiret-binn theory of usiil and how the reformist trend now looks to the magasid

olin: Hand sasuieutetontiel al-Shariah, that is, the objectives of Shari'ah, in order to make up for

$ undefined charact eth the some of the weaknesses of the conventional methodology of usit!

f w. For xum- _al-figh. The present chapter attempts to take some of these points to
Ptah their logical conclusion and takes a closer look at the relationship of

the magasid with the us

One of the main objectives of usiil al-figh is to provide a set of
guidelines to ensure that ra'y plays a supportive role to the values of
waby. This is true of all the familiar doctrines of wsil al-figh which
seek, cach in their individual capacity, to utilise the source evidence
of the Qur'in and Sunnah and extend their message to a variety of
Mp different situations, The inner dynamics of the Que’3n and Sunnah
can be visualised in their emphasis on justice, equality and cruth, on
commanding good and forbidding evil, on the promotion of benefit
and prevention of harm, on charity and compassion, on fraternity and

4. 'Aviyyah

co-operation among the tribes and nations of the world, on consul-
uation and govemment under the rule of law, and so forth. This is
clearly not 4 static agenda and it is broad enough to provide scope
for perpetual refinement. If we see the Shariah in the light of these
objectives, then usil al-figh provide us with procedural devices and

formulae for their realisation

Ic is equally evident that the methodology of usill al-figh would
have little meaning and purpose if the Shari'ah were meant to be a
fixed and unchangeable entity. Usal al-figh is predicated on the ides

of development and growth, and functions as a vehicle of accom-
modation and compromise between the normative values of Shariah
and the practicalities of social change. Us

al-figh ceanslates this

$14 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Conclusion 515

basic outlook into workable formulae that often aim to establish an
equilibrium of values. To speak of istislah, or considerations of public
interest, for example, is to articulate an acceptable formula that strikes
a balance between diverging, even conflic
and change, of those of the individual and society, of freedom and
responsibility, of moral virtue and materialist gain, and so forth. It is

ng, interests of continuity

therefore neither the change as such, nor continuity alone, nor any
Of these other values we have mentioned that could be said to be, in
an exclusive and absolute sense, the valid objective of usa al-figh. It
is rather the manner of reconciling these and achieving a balanced
accommodation and equilibrium that often constitutes the valid
objective of the methodology of usill alight

The persistent quest that we observe, in almost every chapter of
uyiil al-figh for textual proof of particular doctrines, and for conditions
to attend their valid application, that the purpose of all this is to ensure
conformity with the dictates of wwhy. Be it iim or giyas or any other
doctrine, two sets of questions are usually raised, one of which seeks
to ascertain the evidential basis, of hujjiyyah, of that doctrine in the
textual sources, and the other seeks to identify the proper conditions
that would ensure a controlled and methodical application of the
formula in question. Both of these requirements are predicated on
the desire that rationalist doctrines are applied within the given value
structure of the Qur’in and Sunnah:

On a similar note, to stipulate that maslahah or istibsan is a proof
only when it is not in conflict with a cleat text is obviously to preclude
from the ambit of wal al-figh a formula or a method that is alien to
the textually approved values.

Bur then to read among the conditions of qiyas, jimi’, istisdn, etc.,
that these formulae can only be invoked in the absence of a clear ruling
in the textual sources over the issue at hand is another way of saying
that these methodological formulae are basically designed to address
new situations and to find solutions to unprecedented issues. This also
means that usil al-figh is the methodology of accommodating social
change within the given value framework of Islam. Neither usiil al-figh
nor ijtihad would fulfil their desired objectives if they did not enter=
tain novel situations and the idea of developing the law in the light
of the changing needs of society

The onsct of literalism and regimentation in the juristic tradition
of Islam evidently marked a departure from the more versatile and
pragmatic outlook that is upheld in the sources of Shari‘ah and the
precedent of the leading Companions. Instead of perceiving the

words of a given text as the carrier and vehicle of a certain value, the
advocates of literalism began to pay more attention to the words of
the text at the expense, sometimes, of its purpose, which often
amounted to a neglect of prevailing reality and empirical truth. To
insist on the actual sighting of the moon in order to ascertain the
beginning or end of Ramadin, for example, and to say that only the
actual foodgrains or livestock and not its monetary value is payable
in zak@h, amounts to a kind of empty literalism that can hardly be
sustained by a comprehensive reading of the text. Instead of taking a
holistic approach to the reading of the text, literalism began to alienate
the language of the text from the broader objectives of Sharf ah. Being
the main ally of «aglid, literalism tended to dominate, in varying degrees
and contexts the sciences of tafsir, figh and hadith and had serious
repercussions for {jnhidd.

There is now a renewed emphasis on the goals and objectives of
Shariah, the magasid al-shartah, with the express purpose of depart
ing from the strictures of literalism in the direction of a goal-oriented
and comprehensive understanding of the text. This shift of emphasis is
obviously designed to restore the balance between the letter and spirit
of the text that was once present in the early phases of the develop-
ment of upil, but was subsequently disturbed and remained in a state of
disequilibrium throughout the centuries of faglid. Ul al-figh provided
an effective mechanism for ijtihad during the early period but became
increasingly weak until both ijtihdd and usil al-figh came to a standstill,
Usal al-figh changed direction and its resources began to be utilised in
the service of conformity and saglid. Imitation substituted originality,
and literalism offered a comforting escape from the unpalatable reality
of alienation that the ‘ulamd’ experienced as a result of strained
relations with the ruling authorities

‘The fresh emphasis on the magasid that we are now witnessing
is evidently a step in the direction of opening up the outlook and
horizon of upd al-figh and releasing it from the rigidities of literalism
and imitation, but it does not signify a move, as it were, to abandon
iil al-figh altogether. The new emphasis on the magasid may be the
harbinger of a series of detailed changes in the various parts of syil
al-figh as the reformist movement gains greater momentum and support.
The new trend is also indicative of the desire to rejuvenate jihad,
for the revival of ijtihid still remains a largely unfulfilled objective,
even after almost a century since the days of al-Afghini and “Abdub,
whose clarion call for the revival of ijtihad and a return to the sources
of Islam turned a new page in the history of this movement. The

$16 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Islamic resurgence of the 1970s and 1980s has hitherto mainly consisted
of a demand in which the Muslim masses have expressed dissatisfac~
tion over the alienation of their heritage, and domination of Wester
institutions in their societies. This demand has yet to be translated
into specific formulae for reform.

A revised and reformed usil al-figh has been the focus of attention
in recent decades in the activities, not only of the American-based
Intemational Institute of Islamic Thought, but of frequent seminars
and conferences by institutions of higher learning in the Muslim world.
One of the clear messages has been to underscore the stifling effects
of literalism and imitation and invite attention to the higher objectives,
or the magasid, of Shariah. The advocates of reform have warmed
gainst the temptation of reading the usil for its own sake, and stressed
the need to see the usil al-figh in its original light, which is to stimulate
itihad and provide a vehicle for its proper implementation.

To this I might add a reminder of the temptation of moving to the
other extreme and to think that the magisid could by themselves
sausty the reformist demand without the aid of the methodological
tools of usill al-figh, For the magdsid of Sharl"ah are nothing other than
a statement of the goals and objectives of Shar ah, such as maslahah,
justice, and protection of a set of values including religion, life, intellect,
family and property. Important as they undoubtedly are, the maydyid
of Shari'ah do not provide a methodology or operational formulae of
their own, that is, independently of uy! al-figh. The conventional usiil
is, on the other hand, rich with methodology and procedural direc=
tives for ijtihdd, Hence a substantive merger between the usil and
the magisid will prove naturally complementary and appealing. An
open-ended pursuit of the magijid could give rise to the kind of
controversy that history has witnessed between the Ahl al-Ra’y and
Abt al-Hadith. To pay attention to the magaid is otherwise more than
warranted as it marks a new beginning for a goal-oriented method-
ology and opens up the horizons of ijtihaid.

‘Thanks to the strictures of literalism, conventional sil has not
achieved a balanced fusion between the letter and the spirit of Shari“ah.
The ‘wma’ of usil did not pay individual attention to the magisid
and tended to subsume them in their study of such other themes as
ratiocination (a‘li), that is identification of the effective cause (“illah),
hikmah (rationale and philosophy) of the law, and also, of course, giyits
and maslahal, the last of which is in itself one of the recognised
magisid. There were also differences of orientation to these ideas
among the madhahib, some of which viewed ‘illah, hikemah and maslahah

Conclusion 517

more technically than others. Broadly speaking, however, the magasid
aleShartah as a distinctive chapter and discipline of Shari“ah only
received exclusive attention in the works of al-Shatibi in the eighth
century Hijrah, that is, almost five centuries after the development of
the science of usiil al-figh

Six more centuries have clapsed since the days of al-Shatibt and
it is only now that we note a decisive trend toward substantive
integration of the magasid within the fabric of usiil al-figh. The effort
now to give greater prominence to the magdsid should enable us to
discard a ruling, say, of giyds or of farwd and ijtihad, if it is in dis-
harmony with the overriding goals of Sharfah, even if it appears to
be technically sound and in conformity with prescribed procedures.
This would mean that the rulings of ijtihdd are made subservient to
the higher objectives of the law and ate consequently abandoned in
the event of contlict with them.

The fact that we now propose to entrust the Muslim representa-
tive assembly and 4 al-amr with the role of being the main repository
of ijtihad and ijma’ is itself’ move in the direction of the magasid. This
would be one of the most important steps, and would remove the con-
ventional duality between the Shariah and statutory law, and hopefully
bring coherence to law and government in Muslim societies. Although
this is not a new subject and we know the emphasis that is laid in the
textual sources of Islam on the unity and integration of the ummah, yet
no one has, to the bes of my knowledge, discussed this in conjunction
with the magdsid of Sharf ah. Despite the emphatic tone of the Qur'an
and hadith on unity and solidanty, it is somewhat disillusioning to
find that Muslim history is dominated by duality and separation,
Bifurcation and duality in legal practice and education has become even
more pronounced in the present age. To split the Muslim community
between the two opposing camps of ‘wlamd’ and umara’, or between
the Shariah and secular/statutory law, is one of the obvious instances
of the neglect of the magasid of Shari‘ah and the spinit of unity in the
ummah. This also goes to show that the magayid, like the usil, are
changeable ~ in line, thats, with the circumstances of society and time.
The welfare state, economic development and scientific research, to
name but a few, are some of the new themes that should perhaps be
added to the list of the magdsid. The conventional identification of
the essential magayid into five or six headings is evidently not enough
and should be revised and supplemented in conformity with new
developments and demands of the contemporary age.

‘Some of the imbalances we have discussed concerning usiil al-figh

$18 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Conclusion $19

in general, and its various doctrines in particular, are evidently related
to the alienation of ‘ulama’ and government and the exchusion largely
of the former from the latter. The emerging gap between the theory
and practice of usiilal-figh was subsequently endorsed, in modern times,
by the prevalence of statutory legislation, which has largely replaced
ijtihad, and has become a component part and instrument of the
nation-state. Jjtihad and ima, which were the main instruments of
legislation in conventional ujil aligh no longer play the same role in
statutory legislation and have been marginalised as a result. There is
now a tension between the proposed methodology of uyil and the
prevailing model of statutory legislation, But even so, the tension that
we note here still falls short of total alienation between the Sharf alt
and modem law. For if we were to see ijtihdd as a methodology of
research, and ijmd' as legislation by consensus, then neither of these
are toully alien to modem legislative processes.

A great deal of statutory legislation that is in place in almost every
Muslim country can in a substantive sense be subsumed under one
or the other of the existing doctrines of usiilal-figh, be it maslabah, oF
istibsdn or istishdb, or the general principles and guidelines of the
Quin and Sunnah, But since there is no recognised procedure under
the prevailing constitutions to utilise the methodology and resources
of usal al-figh, the continuity and relevance of that heritage has
become increasingly uncertain, Unless there is adjustment on. both
sides, a certain opening up, that is, of the constitutional processes, on
the one hand, and reform in some of the substantive doctrines of
sil al-figh on the other, the desired solutions to the problem the of
alienation of usa! al-figh and its integration into the fabric of modern
government are not likely to matenalise.

We have also seen evidence, throughout the decades of Islamic
revivalism and its aftermath in the latter part of this century, that
Muslim communities and leaders have become increasingly aware of
the need to establish closer links with their own heritage. Greater
awareness along these lines will make the utility and relevance of
usiil al-figh to the legislative processes of government increasingly
obvious,

‘As I have elaborated in a previous chapter on ijmi’, much can be
done to bridge the gap between the theory and practice of usil al-figh
if we can integrate ijtihdd and ijma’ into the working of the Muslim
legislative assembly and alia al-amr, To merge ima and ijtihdd into a
collective and consultative endeavour will hopefully contribute to a
more balanced perspective on legal construction and a move away

from the dry literalism that was driven by an underlayer of tension
between the ‘ulama’ and government

The departure from a literalist to a gosl-onented junsprodence is also
expected to inject a greater degree of empiricism and flexibility into
it that will help to bring the law closer to social reality. The observed
reality needs, therefore, to be translated into the wider logic and
rationale of the textual injunctions of the Qur'an and Sunnah; for the
Qur'sn (and the Sunnah) has itself unfolded its mesage in response to,
and in contemplation of, the then prevailing conditions of Arabian
society. The attending reality was often taken as a springboard and
starting point for building a vision of the future. The frequent Qur’anic
invitation to rational enquiry, observation and investigation, attention
to the laws of causation, leaming from the lessons of history and
the experiences of by-gone nations, attention to real-life events, the
ashdb al-muziil and the realism that is evident in the graduality (‘anjim,
tadarmy) of the revelation of the Qur'an over a period of time should,
all in all, have been enough to give usil al-figh a strong, even indelible,
grounding in empiricism, But this dimension of the original teachings
of the Qur'an, and the pragmatism that is so characteristic of the Sunnah
of the Prophet and his Companions, was neglected in the subsequent
development of Islamic jurisprudence

The change of direction that subsequently took place as a result of
the tenacious hold of taglid made the Sharf'ah increasingly detached
from the realities of life in the community. Ijihdd, which was exsen-
tally designed to keep the law abreast with the changing conditions of
society and reflect the realities of time-space into the fibric of the law,
was subjected to severe restrictions and this resulted in its eventual
decline. Even the most characteristically empirical doctrines of sill
alfigh, such as custom (‘uff), presumption of continuity (istighdb) and
‘maslahah, failed to serve the purpose for which they were originally
designed. They were given a low profile to begin with, and were even-
tually marginalised vis-A-vis the rising tides of literalism. Instead of
becoming an ardent observer of social reality and change, and devising
adequate responses for them, the Muslim jurist of the era of taglid often
denounced social change in the name of aberration from normative
guidance, became increasingly dogmatic and gave non-jjtihadt responses
to issues that required initiative and bold responses along the lines of
ijtihad, "The centuries of taglid that followed led to the widening of the
gap berween the theory and practice of usil, so much so that it was no
longer capable of responding to the more accelerated pace of change
that was stimulated by advances in industry, technology and science.

PRINCIPLES OF ISLAMIC JURISPRUDENCE

Conclusion 521

we observe it and respond to it is one

ihdd on the

To acknowledg

cism that is of concern 1

issues of figh. Another aspect of empirici ¢ the

thodology of usiil al-figh itself as liak

and change. Many of the doctrines of «

‘id, some of which have been supported by ijma’; bu

subject to a disagreement among the madhdhib. The methods
1 line with observation
rary

so proposed should natui hangeal

ence at the end of the 20th ce

and empirical reality. If our experis
shows, f

be changed

example, that our concept of ijtihdd sho

ff statutory
Jima’ and giyis should ad
onditions, then this should be
acceded, and a refusal to do so will be contrary to empirical truth. If

so as to embrace the widely observed phe:

oMeEnor

legislation, or the procedure fe

changed in line with prevailing
8

we arrive, on the other hand, at the conclusi
or procedure will be more suitab

developments, then one should equally be open to

in that a new 5

to accommodate unprece

idea of ade

0g

new methods and new chapters to sytil al-figh, In the same way, one

should also be open to the prospects of discarding certain parts, or
existing elements, of usil al-figh which no longer serve a usefi
purpose, provided that the endeavour is still in kee
cortect guidelines of jihad.

In sum, this book is for the most part devoted to an expe
the science of usil al-figh as it is found in its t¢

wit

ion of

ple sources. I have

also taken the opportunity to convey an awareness, especially in the
present edition, of the problematics of usiil al-figh that have becom
the subject of deliberation and debate in recent times. Issues relating

to the individual doctrines of usill have bee

addressed in the relevant
parts of this book as and when chosen doctrines are discussed, | have
made suggestions for possible adjustments, and discussed reform
proposals that Muslim scholars have advanced in recent times. The
proposals I have discussed generally look to the ways and means by
which the individual doctrines of wsdl al-figh can be utilised in the
legislative and judicial processes of contemporary government.

The last chapter in this book expounded a new scheme for usil
al-figh and suggested a reorganisation of its methodology with a view
to enhancing internal coherence and consolidation in this discipline.
The revised scheme of usill al-figh is also hoped to bridge the gap
that has developed between Sharf'ah and statutory law, and ultimately
to achieve a substantive integration between them. This will, in all

probability, involve a gradual process of preparation that might

culminate in constitutional reform; but once achieved, it will equip
the Muslim legislature with a diverse and resourceful methodology
and place the Muslim government in a position to expect greater
public support for its programmes.

The proposed new scheme for x
way to overcome the shortcomir
especially in relationship to ijtihdd and ijma’, the two

I al-figh promises to go a long
gs of conventional le

al theory,

ast versatile
and yet dormant doctrines of usiil chat have yet to be utilised as
ments of legislative consolidation

proposes to subsume th

instru

nd reform. The new scheme

m both under the ordinances of the ala al-amr,
4 Quranic formula that combines authority with consultation, the
expertise of the leading ‘wlama’ with that of the scholars in other
disciplines, and encourage p originality and consensus
within the fabric of a lawfully-elected government, This scheme
combines the interests of both continuity and change in a revised, yet
1 al-figh, and takes it to its logical con

ticipation,

esentially unchanged,
clusion.

Glossary

ad! ; justice, upright and just
dalah : justice, uprightness of character
Wah (pl. of dalif): proofs, evidences, indications

ahad: solitary hadith, report by a single person or by odd individuals.
ahkedm (pl. of hukm): laws, values and ordinances.

ahliyyah: legal caps

al-ada

ahliy

apacity that can incur

obligations.
ahliyyah al-wujab: receptive legal capacity which is good for receiv
ing but cannot incur obligations.

amal: act, practice, precedent

4mm: general, unspecified

ame (pl. @
agl: int
arkiin (pl. of rukri): pillars, essential requirements.

mir, umf): command, matter, affair

lect, rationality, reason,

asl: root, origin, source.

athar: lit, impact, trace, vestige; also deeds and precedents of the
Companions of the Prophet

yah (pl, dyad): lie. sig
referred to as a “verse

mah: strict or unmodified law which remains in its

ndication; a section of the Qur’inic text often

inal rigour

due to the absence of mitigating facton.
il: null and void

bayan: explanation, clarification

dalilah; meaning, implication,

dalilah al-nasy: inferred or implied meaning of a given text
dalil: proof, indication, evidence.

faqih (pl. fugaha’): jurist, one who is leamed in figh
far : ic. a branch or a sub-division, and (in the context of qiyis) a new

Glossary

case

fard: obligatory, obligation

fard ‘ayn: personal obligation.

fard kafs't: collective obligation

fisid: corrupt, void; deficient (as opposed to baril, which is null and
void)

furl’ (pl. of far): branches or subsidiaries, such as in furl al-figh, that
is, the ‘branches of figh’, as opp:
!-figh)

d to its roots and sources (usiil

hadd (pl. budid): lit. limit, prescribed penalty

hadith: narratives and reports of the deeds and sayings of the
Prophet

haji: the once-in-a-lifetime ob

hagtgf: real, orig

hagy Allah: right of God, or public right

agg al-‘abd (also bagg al-ddemt’): right of man, ot private right

Aijrah; the Prophet's migration from Mecca to Medina, signifying the
beginning of the Islamic calendar

hirdbah: highway robbery

tion of pilgrimage to the holy Ka'bah
nal, literal (as opposed to metaphorical)

hisbah: lit. computation or checking, but commonly used in reference
to what is known as amr bi'l-ma'rif waenahy ‘an al-munkar, that is,
‘promotion of good and prevention of evil"

hujjiyyah; producing the necessary proof/authority to validate a rule
‘or concept

hukm (pl. ahkaim) as in hukm shart: law, value, or ruling of Shart ah,

al-hukm al-taklif: defining law, law that defines rights and obligations

al-hukm al-wad't: declaratory law, that is, law which regulates the
proper implementation of al-bukm al-taklift, such as by expound
ing the conditions, exceptions and qualifications thereof

ibdrah al-nass: explicit meaning of a given text which is borne out by
its words.

iddah: the waiting period following dissolution of marriage by
or divorce.

ifidr: breaking the fast

imi: consensus of opinion.

ijtihad: lit. ‘exertion’, and technically the effort a jurist makes in order
to deduce the law, which is not self-evident, from its sources,

ikhtilaf: jurstic disagreement.

‘illah: effective cause, or ratio legis, of a particular ruling,

igtida’ al-nass: the required meaning of a given text.

eath

$24 PRINCIPLES OF

SLAM

Glossary 525

s: an alluded meaning that ca

mah
istibsa
hab

sts quo arile

allibility, immunity from making errors.

n something

sumption of continuity

Jeration of pi

deducir

istinbay: inferenc a somewhat hidden

aning from a

given text

jihad: holy struggle

jumhitr: dominant majority

haffarah (pl. kaffrdt): penance, expiati
heal: lit

is, ‘the
karthah (
k

khaft: hidden, obscure; also re

eech, but often used as abbreviation for ‘ilm al-fealdm, that

logy’ and dogmatics

ihiyyah): abhorrence, abomination.

Jar; news, report; also a synonym for hadith:

to a category of unclear words.

khass: specific, a word or a text which conveys a §

meai

al-kulafa al-rashi

in: the Rightly-Guided Caliphs; the firse four
Caliphs of Islam.
kitabiyah; fer

¢ follower of a non-Islamic revelation.

dhhab (pl. madhahib): juristic/theological school,
mafaid: a missing person of unknown whereabouts

mafhim al-mukhdlajah: divergent meaning, an interpretation that

diverges from the obvious meaning of a given text
majizl: metaphorical, figurative

makrih: abominable, reprehensible

mandab; commendable

ini’ > hind,

mansiikh: abrogated, repealed

ce, obstacle

magasid: (pl. of magsfid); goals and objectives
mashhiir; well-known, widespread.

‘maglahah: considerations of public interest
audit (pl. mawda'at); fabricated, forged.
mubil permissible

mufassar: explained, clarified

harabah: highway robbery

muhkam: perspicuous, a word or a text conveying a firm and un-
equivocal meaning.

mujmal; ambivalent, ambiguous, referring to a category of unclear
words,

mujtahid (pl. mujtahidan): legist competent to formulate independent
tradition based opinions in legal or theological matters.

mukallaf: a competent person who is in full possession of his faculties

mukhtagar: abridgement, summary, esp, of juristic manuals composed
for mnemonic and teaching purposes.

mundsib: appropnate, in harmony with the basic purpose of the law

fied

connected’ hadith, esp. at the level o

gayyad: confined, qu:
mursal: “discontinued or *

Companio

mushkil: difficult; also refers to a category of unclear words

mushtarak: homonym, a word or phrase imparting more than one
meaning,

musnad: hadith with a continuous chain of transmitters

mutashdbih: intricate, unintelligible, referring to a word or a text
whose meaning is totally unclear

mutlag: absolute, unqualified.

nahy: prohibitis

nagll: transmitted, as ¢.g., in “transmitted proof’ which are to be
distinguished from ‘rational proofs’

ndsikh: the abrogator, as opposed to the mansilkh (abrogated)

naskh: abrogation, repeal

nass: a clear injunction, an explicit textual ruling
niledly: marri
(pl. of nas): clear textual rulings.

ye contract

qadhf; slanderous accusation.
@idhif: slanderous accuser

4adt: judge
gar't: definitive, decisive, free of speculative content

gisds: just retaliation

rajm: stoning to death.

riwayah: narration, transmission.

rukksah: concession or concessionary law, that is, law which is modi-
fied due to the presence of mitigating factors.

rukn: pillar, essential ingredient

sabab (pl. ashi): cause, means of obtaining something,

sahth: valid, authentic

salah: obligatory prayers

sanad: basis, proof, authority

shart (pl. shura): condition

$26 PRINCIPLES OF ISLAMIC JURISPRUDEN

shiira: consultation.

e-drinking

ta'diyah: transferability

tablit: kervening marmage c
i re

ted for the sole purpose of

e between a dil

tahrim: prohibiti
takhsis: specifying the general
takhyir: right to choose.

reed couple.

n, or rendering somethin, ‘0 hardm.

taklif: liability, obligation
talag: divorce initiated by the hu
ta'lil: ratiocination, search for the

a ruling
tagiyyah; concealment of o
taglid: imitation, following

ash: legislation.

views and opinion

tawitur: continuous recu!

nce, continuous testimony

fa'wil: allegorical interpretation.

tayammum: ablution with clean sand/earth in the event where no

water can be found
ww

ta

zir: deterrence, discretionary penalty deters

by the gad!

kiysh; compurgation, testing the reliability of a witness, cross
examination.

thaman; the purchase price

la al-ame: persons in authe

and in charge of community affairs
ummah: the faith-community of Islam

iin: modem jurisprudence.

y: divine revelation,
jib; obligatory, often synonymous with fard
aijib ‘aynt: personal obligatic

b kafa't: collective obligation of the entire community

ali: guardian

wugf: charitable endowment

wasf (pl. awsaf\: quality, attribute, adjective

wildyah (also waldyah): authority, guardianship (of minors and lunatics)
wndii’: ablution with clean water

wwjab; obligation, rendering something obligatory

ahir: manifest, apparent

ann: speculation, doubt, conjecture
zanni: speculative, doubtful

ina: adultery, fornication.

Bibliography

Aba Sinnah, Abmad Pahmi. ‘Nagariyyah al-Haqq’, in Mubammad
Tawfiq ‘Uwaydah, ed,, al-Figh aleIslamt Asis al-Tashet', Cairo:
Marabi’ al-Abrim, 1391/1971

Abu Sulayman, Abul Hamid. The Jslamic Theory of Intemational
Relations: New Directions for Islamic Methodology and Thought
Hemdon, VA: International Institute of Islamic Thought, 1987

Abo Sulayman, ‘Abd al-Wahhtb Ibrahim. al-Fikr al-Uyill, and edn
Jeddah: Dar al-Sharq, 1404/1984

Aghnides, Nicolas P. Muhammadan ‘Theories of Finance. New York
Longmans Green & Co., 1916. Lahore: Premier Book House, 1957

al-'Alwint, Tabi Jabir, ‘The Crisis of Figh and the Methodology of
Gjtihad’. The American Journal of Islamic Social Sciences 8 (1991), 317-339.

al-Amidf, Sayf al-Din ‘All b. Muhammad, al-hkim ff Uyill al~Abkam
4 vols, ed. ‘Abd al-Razziq ‘Affi, and edn. Beirut: al-Maktab
al-Isliml, 1402/1982

Amin, Abmad. Fajr al-Islam. 14th edn, Cairo: Maktabah al-Nahdah, 1986.

al-Ansiri, AbG Yaby3 Zakarlya. Ghdyalt al-Wgil ila Lubab al-Usil
Cairo: ‘Ist al-Babl al-Halabi, n.d.

Ansari, Zafar Ishaq. “The Significance of Shafi'l's Criticism of the
Madinese School of Law’. Islamic Sudies 30 (1991), 485~S00.

Ibn al-‘Arabi, Ab Bakar b, ‘Abd Allah. Abkim al-Qur'an, Cairo:
Matba'ah Dar al-Sa'sdah, 1330 Ait

Agghari, Sayyid Mobammad. Qiyis wa sayr-e Takwin-e dn dar Hugiiqne
Islam, n.p.. 1361/1982.

al-Ahgar, ‘Umar Sulayman, Tartkh al-Figh al-Isliot. Kuwait: Maktabah
al-Falab, 1402/1982

Azami, Muhammad Mustafa. Studies in Hadith Methodology and
Literature, Indianapolis: American Trust Publications, 1977.

al-Azmeh, Aziz (ed.). Islamic Law: Social and Historical Context.
London: Routledge & Kegan Paul, 1988

528 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Bibliography 529

Badrin, AbO al-‘Aynayn Badrin. l
Mu‘assasah Shabab al-Jami‘ah, 1404/1984.
Bayan al-Nussis al-Tasht iyyah: Turuguh wa-Anwituh, Alexandria:
Mu’assasah Shabab al-Jimi‘ah, 1402/19
al-Bahnasiwi, Salim. al-Sunnah al-Mufiari “Alayha
Dar al-Bubath al-'Timiyyah, 1401/1981

‘il al-Figh al-Islami. Ale:

ia:

al-Basri, Abu’l-Husayn Muhammad b. ‘All. aleMw
Figh, ed. Shaykh Khalil al-Mays, Beirut: Dar al-Kutub al-‘Imiyyah,
1403/1983

al-Baybaq!, Ab Bakr Ahmad b. al-Husayn. al-Swnan al-Kubri, 10
vols, Beirut: Dar al-Fikr, n.d,

Isa J. ‘jaz’, The Encyclopedia of Religion, New York:

miillan Publishing, 1987, VIL, 87

al-Bukhari, Muhammad b. 1. Sabth al-Bukhart Istanbul: al-

ktabah al-[slimiyyah. & vols., 1981

—$ahih al-Bukhdrt. Eng. trans. Muhammad Muhsin Khan. 9 vols
Lahore: Kazi Publications, 1979.

al-Bukhirl, ‘Ali’ al-Din ‘Abd al-‘Aztz. Kashf al-Asrar ‘ala Ul al-
Bazdawt. Istanbul, 1307 art

Coulson, Noel, J, Conflicts and Tensions in Isla
Chicago & London: University of Chicago Press, 19%

Curson, L.B. Jurisprudence. Plymouth: Macdonald & Evans, 1979.

al-Dirimi, Mabammad. Sunan al-Darimi, 2 vols. Beirut: Dar al-Kutub
al-limiyyah, n.d,

Abo Diwod al-Sijistint, Sunan Abd Dawid, Eng. trans. Ahmad Hasan
3 vols. Lahore: Ashraf Press, 1984

Denier, Ahmad von, ‘Uhim al-Qur’dn: An Introduction to the Sciences
of the Qur'an, Leicester: The Islamic Foundation, 1983.

Dias, R.W. Jurisprudence. 4th eda. London; Butterworths, 1976.

Din, Haran. al-Nafagah wa'l-Shigdg wa Ta'addud al-Zawjit. Kuala
Lumpur: Matba’ah Watan, 1405/1985

al-Dusdgi, Muhammad. *Nahw Manhaj Jadid li-Dirasah ‘Tm Usd al-
Figh’, Lildmiyat al-Ma‘rifah (Journal of the International Institute of
Islamic Thought, Malaysia), Vol.1, no.3 (1416/1996), 111-149.

Enayat, Hamid. Modem Islamic Political Thought, London: Macmillan
Press Led. 1982

Encyclopedia of Islam. New edo. Leiden: E.J. Brill, 1965-continuing,

al-Ghazali, Aba Hamid Muhammad. wtagfa min ‘Tim al-Usal

Jurisprudence

Cairo: al-Maktabah al-Tijariyyah. 2 vols, 1356/1937.
Gilani, Riaz u-Hasan. ‘The Reconstruction of Religious Thought in Islam
Lahore: Rippon Press, 1977.

Goldziher, Ignaz. Introduction to Islamic Theology and Law. Trans.
Andras and Ruth Hamori, Princeton (New Jersey): Princeton
University Press, 1981

Guraya, Muhammad Yusuf. Origins of Islamic Jurisprudence (with special
reference to the Muwafta’ of lmim Malik). Lahore: Sh. Muhammad
Ashraf, 1985

Ton al-Hajib, Jamal al-Din Abo ‘Amr, Mulshtajar al-Muntaha’
Constantinople: al-Maktabah al-Islimiyyah, 1310 AH.

Hallaq, Wael B. "The Gate of Ijtihad: A Suudy in Islamic Legal History
Ph.D. dissertation (University of Washington), 1985.

Ibn Hanbal, Abmad. Musnad al-lmim Ahmad ibn Hanbal. 6 vols,
Beirut: Dar al-Pikr, ad

Hasan, Ahmad, The Early Development of Islamic Jurisprudence
Islamabad: Islamic Research Institute, 1970.

—The Doctrine of lima in Islam, Islamabad: Islamic Research Institute,
1976.

—'The Principle of Istibsin in Islamic Jurisprudence’, Islamic Sudies
16 (1977). 347>363.

—‘Rationality of Islamic Legal Injunctions: The Problem of
Valuation (Ta'lil’), Islamic Studies 13 (1974),05~110.

Ibn Hazm, Abo Muhammad ‘All b. Abmad, al-thkdm ft Uyal
al-Ahkim, Ed, Abmad Mubammad Shakir. 4 vols. Beirut: Dir
al-Afig al-Jadidah, 1400/1980.

Hitu, Mubammad Hasan. al-Wajtz fi Usil al-Tashri al-Islamt, and edo.
Beirut: Mu'assasah al-Risilah, 1405/1984

Hughes, Thomas Patrick. A Dictionary of Islam, London 1885. Lahore
The Book House, n.d.

Iqbal, Muhammad, The Reconstruction of Religious Thought in Islam
Lahore: Sh. Muhammad Ashraf, 1982.

Isahi, Amin Ahsan. Islamic Law, Concept and Codification. Eng. tans.
S.A. Rauf, Lahore: Islamic Publications Ltd, 1979.

Ismstl, ‘Abd al-Hamid Abd al-Makirim. al-Adillah al-Mukhtalaf
fiha wa Atharuhd ft al-Figh al-Klami. Cairo: Dir al-Muslim,
nd.

Isma'tl, Sha‘ban Mubammad. Masddir al-Tashet al-Islami wa Mawyif
«l-‘Ulama' Minha, Riyad: Dir al-Maknih, 1405/1985.

—Dinisit Howl al-Sjma wa'l-Qiyds. Cairo: Maktabah al-Nahdah
al-Migriyyah, 1408/1987.

al-Isndwi, Jamal al-Din AbO Mubammad ‘Abd al-Rabim. al-Tamhid
fi Takhrij al-Purd’ “ala’l-Uyiil. Es Mubammad Hasan Hitu. 3rd
edn, Beirut: Mu’asasah a}-Risdlah, 1404/1984.

$30 PRINCIPLES OF ISLAMIC JURISPRUDENCE

Bibliography $31

—Nihayah al-Sail fi Sharh Minhay Weill ila ‘Il al-Ligiil. 3. vols.
Cairo: Matbaah al-Tawfiq, n.d.

Kamali, Mohammad Hashim, "The Citizen and State in Islamic Law
Shari'ah Law il 1986) 15-47. Published by. the
International Islamic University, Selangor, Malaysia.

‘Qiyas (Analogy)’. The Encyclopedia of Religion. New York: The
Macmillan Publishing Company, 1987, Xl, r28e

‘Madhhab’. The Encyclopedia of Religion. New York: The
Macmillan Publishing Company, 1987, IX, 66~7of
Sources, Nature and Ob of Shari'ah’, The
Quarterly, Vol. XXXIL (1989

—'Shari‘ah and the Challe:
Kuala Lumpur)

—Methodological Issues in. Islamic
Quarterly. Vol. 11, part 1 (1996), 1~34.

—Punishment in Islamic law: An Enquiry into the Hudud Bill of
Kelantan. Kuala Lumpur: Institute for Policy Research, 1995.
—'Figh and Adaptation to Social Reality’. The Muslim World. Vol
LXXXVI (1996), 62-85

Kassib, Abd al-Latif. Adwa’ Haw! Qadiyyah al-fjri
al-Shart-ah al-Islimiyyah, Cairo: Dir al-Tawfig, 1404/1984

Kerr, Malcolm H, Islamic Reform. Berkeley: University of California
Press, 1964

Khadduri, Majid. Islamic Jurisprudence: Al-Shafi't's Risdlah, Baltimore
John Hopkins University Press, 1961. Cambridge: The Islamic
Texts Society, 1987.

Khallif, ‘Abd al-Wahhib. ‘Jim Usal al-Figh. rath edn. Kuwait: Dir
al-Qalam, 1398/1978
‘Mayadir al Tashef
al-Qalam, 1398/1978

al-Khatib, Muhammad al-Sharbint, Mughnt al-Mubtaj ila Ma‘ ifah
Ma‘ént Alfiz al-Minhaj. Cairo: Muga al-Babi al-Halabi, 1377/1938.

al-Khin, Mustafi Sa'td. Athar al-Ihhtilaf fi'l-Qawi'id al-Usiliyyah fi
Ikhtilaf al-Fugaha’. 3rd edn. Beirut: Mu'assasah al-Risilah,
1402/ 1982,

al-Khudari, Shaykh Muhammad. Usil al-Figh, 7th edn. Cairo: Dar

Fike, 1401/1981

eh al-Tashet al-Isldmi. 7th edn. Beirut: Dir al-Fikr, 1401/1981

Mahmassint, Subbi Rajab. Falsafah al-Tashei fi'l-Llam: The Philosophy
of Jurisprudence in Islam. Trans. Farhat J. Ziadeh. Leiden: EJ. Brill,
1961

Islamic

‘of Modernity

IKIM Journal 2 (1994,

Jurisprudence’. Arsh Law

al-Sayyid

df

al-Islami_fima la Nassa _fih. Kuwait: Dar

—T

Ibn Majab, Mubammad b. Yarid al-Qazwini.
Istanbul: Cagri Yaginlari, 2 vols. 1404/1981
Makdisi, John. *Legal Logic and Equity in Islamic Law’

Journal of Comparative Law, 33 (1988),63-92.

“Formal Rationality in Islamic Law and the Common Law
Cleveland State Law Review, 34 (1985)

al-Marghinini, Burhin al-Din. Hiddya, Eng. trans
Lahore: Premier Book House, 1982

al-Mawsi'ah al-Pighiyyah. Published by the Ministry of Awgaf,
Kuwait: Matha'sh al-Maws0'ah, 1400/1980.

Mawsit'ah al-Figh al-Isldmi. Originally Mawsi’ah Jamal ‘Abd al-Nasir.
Cairo: al-Majlis al-A‘la Li'l-Shu'Gn al-Islimiyyah, 1391 Au.

The Mejelle, Eng, Trans. C. R. Tyser. Labore: Law Publishing Co., 1979.

Minha, Suhayr Rashad. Khabar al-Wahid fi'l Sunnah wa Atharaha fi’!
Figh al-Lslamt, Cairo: Dir al-Shurdg. 2.d.

Miga, Ab0 Bakr Ismi'll Muhammad. al-Ra'y wa Atharuha ff Madrasah
al-Madinah, Beirut: Mu'assasah al-Risilah, 1405/1985

Ton al-Mugaffa’ ‘Abd Allah, Risdlah fi'l-Sahabah, In Mubammad Kurd
Ali (ed.), Risdlah al-Bulagha, 4th edn, Cairo, n.p.. 1954

Maa, Muhammad Yosuf. Abkdm al-Ahwil al-Shakhsiyyah, Cairo
Dar al-Kittb al-‘Arabl, 1376/1956.

—aleMadkehal li-Dirdsah al-Figh al-Islami, 2nd edn., Cairo: Dir
al-Fike alArabl, 1373/1953

Muslim, AbO al-Husayn ibn al-Hajjaj al-NishibOri, Mukhtasar Sabth
Muslim. Ed. Muhammad al-Albini, 4th edn. Beirut: alsMaktab
al-{slimi, 1402/1982.

Mutahhar, Morteza. Jurisprudence and its Principles
Mohammad Salman ‘Tawheedi. New York (Elmbhonst)
Tarsile Qur'an Inc., 1981

al-Nabhin, Mubammad Pirdg. al-Madkhal W'l-Tashet’ al-bslimt,
Nish’atuh, Adwiruh al-Tartkhiyyah, Mustagbaluh, and edn. Beirut
Dir al-Qalam, 1981

al-Nabhin, Muhammad Taq} al-Din. Mugaddimah al-Dustur, Beirut:
1. Pa 1964.

Sunan Ibn Majah

American

Hamilton.

Trans.
Tahrike

al-Nawawi, Muhyi al-Din Abo Zakariya Yabyi ibn Sharaf. Minhaj
@l-Talibin. Eng, trans, E, C. Howard. Lahore: Law Publishing
Company, n.d.

Nour, Alhaji A.M. ‘Qiyas asa Source of Islamic Law’, foumal of Islamic
and Comparative Law, § (1974), 18-31

Osbom, P.G. A Concise Law Dictionary. sth edn. London: Sweet &
Maxwell, 1964.

PRINCIPLES OF ISLAMIC JURISPRUDENCE

Bibliography 533

Owsia, Parvez. ‘Sources of law under English, French Islamic and

ranian Law’. Arab Law Quarterly 6(1991)

R. ‘Istibsin and Istislih’, Encyclopedia of Islam, New Edition.
Leiden: EJ. Brill, 196s-continuing

Qudei, Anwar Ahmad. Islamic Jurisprudence in the Modem World. and

Lahore: Shaikh Muhammad Ashraf, 1981

radawi, Yosuf. Si U-Islam salihal li'leTatbig ft Kull Zaman
wa Makan. Cairo: Dir al-Sahwah, 1393 AM
al-Ijihdd fi'l-Shari‘ah al-Islamiyyah, Kuwait: Dir al-Qalam,
1406/ 1986.

al-Qarafl, Shihab al-Din

Arabiyyah, 1346 ax.

al-Qaytin, Manna‘ Khalil. al-Tashrt wa'l-Figh fi'l-Islam: Tartkehin wa
Manhajan, 4th edn, Beirut: Mu'assasah al-Risdlah, 1405/1985

Ton Qayyim al-Jawziyyah, “Abd Allth Mubammad b, Abd Bakr
al-Turug al-Hukmiyyah fi'l-Siydsah al-Shani'iyyah. Cairo: Mu'assasah
al~‘Arabiyyah li'l-Tiba'ah, 1380/1961
—L lam al-Muwaggi'in ‘an Rabb al-Alamin. Ed, Mubammad Munir
al-Dimashgl. Cairo: Idirah al-Tiba‘ah al-Muniriyyah. 4 vols., n.d.

The Qur'an, Text, Translation and Commentary by Abdullah Yusuf Ali
Jeddah: Islamic Education Centre, 1984

The Qur'an, The First American Version, Translation and Commentary
by Thomas B. Irving. Brattleboro (Vermont): Amana Books,
1985

al-Qurtubl, Abd “Abd Allith Muhammad b. Abmad. al-Jdmi li«Abkatm
al-Qur'an (also known as Tafsir al~Qurubi’. 3rd edn, Cairo: Dar
al-Kutub al-‘Arabiyyah, 1387/1967

al-Qurtubl, Muhammad b. Abmad b. Rushd. Biddyah al-Mujtahid,
Cairo: Mustafi al-Babt al-Halabt, 1401/1981

Rahim, Abdur, Principles of Muhammadan Jurisprudence. London:
Luzac and Co. 1gtr

Rahman, Fazlur. Llamic Methodology in History, Karachi: Islamic
Research Institute, 196s.
Islam, 20d edn., Chicago and London: University of Chicago
Press, 1979.

al-Razi, Fakhr al-Din b, ‘Umar, al-Tafifr al-Kabir (also known as
Majitth al-Ghayb), Beirut: Dir al-Fikr, 1398/1978

Rigi, Mubammad Rashid. Tafsir al-Qur’n al-‘Azim (also known as
Tafsir al-Mandr). 4th edn. Cairo: Mayba'ah al-Manar, 1373 Au.

al-Sabani, ‘Abd al-Rabmin. Mubddarit fi'l-Sharfah al-Islamiyyah,
Bp. 1393/1972

b al-Furig. Cairo: Dar al-Kutub

al-Sabani, “Abd al-Rahmin, Khalifah Bibakr and Mahmad Tangiwi
al-Madkhal al-Fight wa-Tarikch al-Tashet al-Islamé, Cairo: Maktabah
Wahbah, 1401/1982.

al-Sadr, Mubammad Sadiq. al-limat fi'l-Tash® al-Islam’. Beirut
Mansharit “Uwaydit, 1969.

Sadr al-Shari‘ah, ‘Ubayd Allah ibn Mas'td al-Mahbubi, al-Tawdih ft
Hall al-Ghawamid al-Tangih. Cairo: Dir al-'Ahd al-Jadid. li'l-
Taba‘ah, 1377/1957.

al-Salib, Subbi. Mabahich ft ‘Ulam al-Qur'dn. 1sth edn, Beirut: Dir
al‘tim ji al-Malyin, 1983

al-Sarakhs!, Shams al-Din Muhammad. Usill al-Sarakhst. Ed. Abu'l-
Wafi al-Afghani, Cairo: Mayba‘ah Dar al-Kirab al~' Arabi, 1372 ait

— al-Mabsilt. 30 vols. Cairo; Matba‘ah al-Sa‘Sdah, 1524 Alt

Schacht, Joseph. An Introduction to Islamic Law. Oxford: C
Press, 1964

Sha'bin, Zaki al-Din. ‘Manhij al-Qur'in ff Bayin al-Abkim', in
Mubammad Tawflq ‘Uwaydah (ed.), al-Figh al-kslami Axis
al-Tashel. Cairo; Mayabi' al-Ahrim, 1391/1971, 11-65.

—Upiil al-Figh al-islimi. and edn. Beirut; Dir al-Kitib, 1971

Shabir, Mohammad. The Authority and Authenticity of Hadith as a
Source of Islamic Law. New Dell: Kitab Bhavan, 1983.

Shifi'l, Mubammad b. Idris, Kitdb al-Uimm, 7 vols, Cairo: Dar
al-Sha'b, 1321 AML

—al-Risilah, Ed. Mubammad Sayyid Kilinl, and edn. Cairo:
Musfafi al-Babi al-Halabi, 1403/1983,

Shih Wall Allah, Lzdlah al-Khafa’ ‘an Khilafah al-Khulaft’, Karachi
Bareilly, 1286/1869.

——Quenah ale’ Aynayn ft Tafdil al-Shaykhayn, Delhi, 1310/1931

Shalabl, Mubammad Musfaf’. al-Figh al-Lslimt bayn al-Mithdliyyah ws
al-Wagi'iyyah. Beirat: al-Dar al-Jami'iyyah, 1981

Shaltéx, Mabmod. al-Islam, “Agidah wa-Shart'ah. Kuwait: Maysbi® Dar
al-Qalam, 1966.

Al-Shatibi, Abo Ishaq Ibrahim. al-Muwafagit ft Upal al-Ahkiim, Bd.
Mubammad Hasanayn Makhiof, Cairo: al-Matba‘ah al-Salafiyyah,
1341 All

—al-Muwifagat ft Upil al-Shart'ah, Ed. Shaykh ‘Abd Allah Diriz.
Cairo: al-Maktabah al-Tijariyyah al-Kubra, n.d.

—al-I'tisdm, Cairo: Matba‘ah al-Manar, 1331/1914.

—Fath al-Qadir. 3rd edn., Cairo: Dar al-Fikr, 1393/1973.

al-Shawkint, Yaby’ b. ‘Ali. Irshad al-Fubiil min Tabqiq al-Flagg ila ‘tlm
al-Uyill, Cairo: Dar al-Fikhr, n.d.

ndon

$34 PRINCIPLES OF ISLAMIC J

ENCE

al-Shirizi, Abs Ishaq. al-Luma’ ft Usal al-Figh. Cairo: Dar al-Ra’id
al-‘Arabl, 197
al-Siba'l, Mustafi Husni. al-Surnah wa Makénat

Islami, zed edn. Beirut, 1402/198

fi'l-Tashrt al

sI-Sijistani, Aba Diwod. Sunan. Eng. trans. Ahmad Hasan, 3 vols
Lahore: Ashraf Press, 1984.

Sorush, Abd al-Karim. Qubd-o Baste Teorik-e Shari‘at. Tebrar
Mu'ssasa-e Farhan-e Sirat, 1371/1992.

al-Suydi, Jala! al-Din and al-Maballt, Jalal al-Din. Tafsir al~Qur'dn
alAzim (also known as Tafsir al-Jalilayn). Cairo: Dar al-Fikr
1401/1981

al-figan ft ‘Ukim al-Qur’an, Beirut: Maktabah al-Thagafiyyat
1393/1973

Tabart, Ab Ka'far Muhammad b. Jarir. Jami" al-Bayan ‘an Ta'wit Ayi
al-Qur'an Dir al-Ma'rifah, 1374 ait

al-Tabrizi, Mi mad b. “Abd Allih al-Khatib. Mishkar al-Magabth
Ed. Mubammad al-Din al-Albinl. 3 vols, and edn. Beirut
al-Maktabah al-Isliml, 1399/1979.

Taftizini, Sa‘d al-Din Mas‘dd b. “Umar, ol-T
the margin of ‘Ubayd Allah b. Mas‘Od Sadr al-Shart‘ah, al-Tawdth
ft Hall Ghawsimid al-Tangth, Cairo: Ist al-Babi al-Halabl, 1317/1957.

, ‘Abd al-Rahman. al-Siydsah al-Shariyyah. Cairo; Matba‘ah Dir
al-Ta'llf, 1373/1953

al-Tamawi, Sulaymin Muhammad. al-Sw
al-Arabiyyah wa fi'l-Piker al-Siyast al-
al-Fike al-"Arabl, 1973

Ibn Taymiyyah, Taq! al-Din. Mas'alah al-Istihsan. Trans. and ed.
George Makdisi as “Ibn Taymiyyah’s Manuscript on Istihsan’, in G.
Makdisi (ed.). Arabic and Islamic Studies in Honour of Hamilton ALR.
Gibb, Leiden: EJ. Brill, 1965.

—Majmit‘ah Fardea Shaykh al-Islam Ibn Taymiyyah. Compiled by
Abd al-Rabmin b, Qisim. Betrut: Mu‘ assasah al-Risjlah, 1398 an

al-Tafl, Najm al-Din. al-Masalih al-Mursalah. This treatise of about
40 pages appears in the Appendix to ‘Abd al-Wahhab Khallal,
Majadir al-Tashet al-Islamt fi-ma la-~Nagga fth. Kuwait: Matabi' Dar
al-Qalam, 1970.

Weiss, Bernard. ‘Interpretation in Islamic Law: The Theory of Ijtihad
The American Journal of Comparative Law, 26 (1978), 199-212.

Yusuf, Ridwan Aremu. “The Theory of Istihsan (Juristic Preference
in Islamic Law)’. Unpublished Ph.D. dissertation. Montreal

th ‘ala'l-Tadth. On

lutat al-Thalath fi'l-Dasatie
and edn. Cairo: Dir

McGill University, 1993.

Yusuf, SM. Studies in Llamic History and Culture
Muhammad Ashraf, 1970.

Abi Yosuf, Ya'qob b. Ibrahim. Kitéb al-Kharaj. and edn. Cairo:
al-Matba'ah al-Salafiyyah, 1352 Aut

Abo Zahrah, Muhammad, Abi Hanifah, Haydtuh wa ‘Asruh, Ari’uh
wa Fighwh. Cairo: Dar al-Fikr al-' Arabi, 1366/1947.

—bn Hanbal. Cairo: Dar al-Fikr al-‘Arabl, 1367/1947

—Usil al-Figh. Cairo: Dir al-Fikr al-‘Arabl, 1377/1958.

Zander, Michael. The Law Making Process. London: Wiedenfield and
Nicokon, 1989

al-Zarkashi, Badr al-Din Muhammad b, Bahadur. al-Babr al-Mubtt ft
Usal al-Figh. Ed. ‘Umar Sulayman al-Ashgar. and edn, Cairo: Dar
al-Sahwah, 1413/1992

Al-Zarq3, Mustafi Abmad. al-Madkhal al-Fight al-“Amm, 3 vols. 6th
edn. Damascus: Dir al-Fikr.

Zayd, Mustafi. al-Maslabah fi'l-Tashr aleIslimt wa-Najm al-Din
al-Taft. and ed. Cairo: Dir al-Fikr al-“Arabl, 1384/1964,
sal-Nasikh wa'l-Mansukh, Cairo: Dir al-Fikr al-‘Arabl, 1388/1963.

Zaydiin, ‘Abd al-Karim. al-Fand wa'l-Dawlah fi'leShart ah alIslamiyyah
and edn. Gary (Indiana): International Islamic Federation of
Student Organizations, 1390/1970

—al-Wajiz fi Usillal-Figh. Baghdad: Maktabah al-Quds, 1936/1976.
al-Zubayll, Wahbah, Usal al-Figh al-Islimt, Damascus: Dir al-Fikr

K'l-Tiba‘ah wa'l-Tawai', 1406/1986.

Athar al-Harb fi'l Figh al-lslamt: Dirisah Mugaranah, 20d ede

Damascus: al-Maktab al-Hadith, 1385/1965.

Zuhayr, Muhammad Abd al-Nor, Usal al-Figh. 4 vols, Cairo: Dir
al-Tiba‘ah al-Mubammadiyyah, 1371/1982

Lahore: Sh

Index 39-60, 478 ated it,
‘ i"
Ale Allah ibn ti “ A d-Derdnwt, Fakhr alten, 1
Ate aM re sa 1338 6
Abul : . weaver bern a
Wak : 6, 299, 99% 9 “ “4 426, 46
+ A 4 aohad al-carkthy. 09: wo~7, 4 s
Abs zikiah, 34, 96 94. 37% 19, mts 9 f
adit, 15, 14 smal 63, 104, 290-2, d-Dagiiant: Abe Bake. 200, 235:'30 yeqeicements 06 3

8 PRINCIPLES OF ISLAM RISPRUDENCE Dates. 30

dalla ai 2 weak, 111, 204 bugiig Alla al-khalisah, 448
sla aia 02 al-D: he ~ 4 alekiusayn ibe "AR, 18
ie, 48 Wh 4-9, 152-4, 16 Ton Dagig alld, ap4
n 3s. 38 ans 12 ; 7, 184, 203, 49, 286, 5 Ths Hajar al-’Angalins, 494
‘3 Ae 327, 330, 3986, 968, 995, 9 ba alba 1, NOs 193s Sa, 303,
ecu pw, oe hk 40, 384 + B34, IBD, 504, 419, 426, 444 8 4
etiing law, see uken fal 44 60, 420, 44 ATP Manbal 4s 148 °: Hanbal, 44, 99, 964 1
Dummns. 51 401, 4 Rial 4. AOS, 420, 423, 496 s "i
Jawi, Shah Wal Allgh, 214, 2396 in hagigh (literal) words, 3,55, 19-6, 193 Thm Maan, 97, 18, 220, 292, 271
25h 259, 4 A at, 44 hhapy Allah, bagy al'ahd, 445-9, 40 yas 364s 384
fivergent meaning ee mapa 140, 4 wrt, 456, 6, 6. bn a-Humam, Kamal al-1in, 10, 49
WH omubhatoh “oe 963, ¥POP4, SBR, 390, 405. 413, 408 7B, 481. 49, 490
divorce, 26, 34 yh 14d 4 . nae 2 Too Ma'in,
160-1, 190 178, 3913, 400, 411, 426 ie 4064 1 Majah, 462
f ‘ “ Tho Mar'ad, 2 My 240°1, 399,
4 ' aah
liyah, 76 ‘ “ ho, orp 49. 370, 98
a xviii, t y hn abMusayyiby, 108-9,
Map : 2 0, al-Han
BEML. 334 400, 416, 43, 434. 449 al-Jawelyyab 430-1, 355.
Eeypt 74, 269, 9 di 4. 1, a), 28, 61, 314 443.481, 493
dru alent, 79 dinconanued (hays muta * Noe Salamnah,
amily law, 35. 46, 440 59 forgery tn, 7%, ‘Kom Sayyid al-Nis
gth, 3 Ot, 9D, 33 Ios, 11 Mom Taymiyyah, 105, 327) 345-4, 48)
in auf 1 i 62-4 Tn "Umar, #4305 34
mW, 79, 40, 439 Hudthayf, 240, 401 Mer Uren Makin, 5
Inuiiyyah, 280, 919. 317, 448, S14 “e
, Ik, Bite 36, 69, 597, 4, 270-3, 00, 38%, 419
‘ 9.14 ry 327, $90, 545-4
42), 45308 479. 86, 91, 93-4 103, aki shah, 4, 7s 13s 270, 410, 44% ryt almonds, 73
U5. 34 Hs 207, 384, 296, 4585, 42 dows sail, 4836 49 iirah (lease), 27, 334-6, 585. 438

PRIN ES OF ISLAMI RISPRUDENCE Index 54

a woe Caliptn), 315-4. 319. 3: al-Mvunats, 6), 928

implication of dhe attribute, see maflim Laylah a A mode’, 411, 418, a8 48h 445
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This third edition of the best-selling title Principles of Islamic
Jurisprudence has been completely revised and substantially
enlarged, In this work, Prof M H Kamali presents the first
detailed exposition available in English of the theory of
Muslim jurisprudence (usiil al-figh). Often regarded as the
most sophisticated of the traditional Islamic disciplines,
Islamic jurisprudence is concerned with the way in which
the rituals and laws of religion are derived from the Qur'an
and the Surina—the precedent of the Prophet. Written
as a university textbook, Principles of Islamic Jurisprudence is
distinguished by its clarity and readability; it is an essential
reference work not only for students of Islamic law, but
also for anyone with an interest in Muslim societies or in
issues of comparative jurisprudence.

Prof Mohammad Hashim Kamali was Professor of Law
at the International Islamic University, Malaysia, where
he taught Islamic law and jurisprudence for over twenty

years. He is, at present, Chairman of the Intemational
Institute of Advanced Islamic Studies (IAIS) Malaysia.
Among his other titles are Principles of Islamic Jurisprudence
and Islamic Commenial Law.